INTERNATIONAL  MINING  LAW 


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INTERNATIONAL 

MINING  LAW 


BY 

THEO.  F.  VAN  WAGENEN,  E.  M, 

PRESIDENT  AND  GENERAL  MANAGER 

THE  AMERICAN  POTASH  CO.,  DENVER,  COLO. 

MEMBER  AMERICAN  MINING  CONGRESS 


FIRST  EDITION 


McGRAW-HILL  BOOK  COMPANY,  INC. 

239  WEST  39TH  STREET.    NEW  YORK 


LONDON:  HILL  PUBLISHING  CO.,  LTD. 

6  &  8  BOUVERIE  ST.,  E.  C. 

1918 


COPYRIGHT,  1918,  BY  THE 
MCGRAW-HILL  BOOK  COMPANY,  INC. 


.^C, 


THE    MAPLE    PRESS    YORK    P 


PREFACE 

Practically  all  the  raw  material  in  this  volume  was  collected 
primarily  for  the  purpose  of  enabling  the  author  to  form  an 
intelligent  opinion  as  to  whether  the  American  Federal  Mining 
Law  was  in  need  of  revision,  and  if  so,  in  what  respects.  To 
accomplish  this  two  kinds  of  information  on  the  subject  appeared 
to  be  necessary.  First,  a  knowledge  of  the  mining  laws  of  other 
countries,  for  the  purpose  of  being  able  to  compare  them  with 
our  own  and  to  note  the  points  of  difference;  and  second,  the 
statistics  of  production  in  the  principal  metal-mining  regions 
of  the  world,  so  as  to  be  in  a  position  to  judge  of  the  comparative 
worth  of  each  law  by  the  results  obtained  under  it.  As  the 
investigation  advanced  it  was  found  desirable  as  well  as  interest- 
ing to  take  note  of  the  salient  features  of  the  history  of  the 
industry  in  each  principal  field.  This  naturally  led  to  an  inquiry 
into  ancient  and  repealed  mining  legislation  and  customs,  the 
better  to  understand  those  now  in  force;  which,  in  its  turn,  called 
for  a  study  of  the  beginnings,  rise  and  growth  of  the  occupation 
of  mining.  And  now,  in  putting  together  the  results  obtained, 
the  steps  taken  are  naturally  reversed  in  the  act  of  publication. 
It  is  hoped  that  the  arrangement  adopted  will  prove  a  suitable 
one  from  the  point  of  view  of  the  reader. 

Mining  law  is  a  broad  subject.  In  the  digests  of  laws  given, 
with  a  view  to  confining  the  investigation  within  reasonable 
limits,  the  attempt  has  been  made  to  give  only  those  parts  of 
each  which  referred  to  metal  mining,  omitting  wherever  possible 
those  having  to  do  with  coal,  iron,  and  the  non-metallic  sub- 
stances. Naturally  the  statistical  tables  have  been  prepared 
on  the  same  plan. 

A  considerable  number  of  the  laws  abstracted  were  found  to 
be  of  only  moderate  assistance  to  the  inquiry;  either  because  of 
their  comparative  antiquity  or  crudity,  or  for  the  reason  that 

v 

399000 


vi  PREFACE 

they  had  been  framed  to  apply  to  special  or  unusual  conditions, 
or  consisted  mainly  of  rules  and  regulations  governing  the 
activities  of  subject  or  half  civilized  people.  Yet  even  in  these 
there  were  generally  found  features  of  interest,  and  consequently 
all  have  been  given  in  Chapter  12,  along  with  others — like  that 
of  Japan — that  are  quite  up  to  date,  and  well  worth  the  considera- 
tion of  the  student. 

THEO.  F.  VAN  WAGENEN. 
DENVER,  COLORADO. 
May,  1918. 


CONTENTS 


PAGE 

PREFACE    ........    v 

CHAPTER  I 

HISTORY  OF  MINING  AND  OF  MINING  LAW  PREVIOUS  TO  THE  DISCOVERY 
OF  AMERICA 1 

CHAPTER  II 

HISTORY  OF  MINING  AND  OF  MINING  LAW  SINCE  THE  DISCOVERY  OF 
AMERICA 9 

CHAPTER  III 
ANCIENT  GERMAN  MINING  LAWS  AND  CUSTOMS 17 

CHAPTER  IV 
ANCIENT  SPANISH  MINING  LAWS  AND  CUSTOMS 21 

CHAPTER  V 
MEXICAN  MINING  DECREES  FROM  1821  TO  1883 .    .     44 

CHAPTER  VI 

THE  LATIN- AMERICAN  SYSTEM  OF  MINING  LAW.  DIGESTS  OF  THE  MIN- 
ING LAWS  OF  ARGENTINA,  BOLIVIA,  BRAZIL,  CHILE,  COLOMBIA,  COSTA 
RICA,  CUBA,  ECUADOR,  GUATEMALA,  HONDURAS,  MEXICO,  NICARAGUA, 
PANAMA,  PERU,  URUGUAY  AND  VENEZUELA.  RESULTS  OF  THE  SYSTEM. 
STATISTICS  OF  METAL  PRODUCTION  FROM  1851  TO  1916 47 

CHAPTER  VII 

THE  AMERICAN  SYSTEM  OF  MINING  LAW.  DIGEST  OF  THE  U.  S.  FED- 
ERAL MINING  LAW.  DIGEST  OF  THE  MINING  LAW  OF  TEXAS.  RESULTS 
OF  THE  SYSTEM.  STATISTICS  OF  PRODUCTION  FROM  1851  TO  1916.  .  .  98 

vii 


viii  CONTENTS 

CHAPTER  VIII 

PAGE 

THE  BRITISH  AUSTRALASIAN  SYSTEM  OF  MINING  LAW.  DIGESTS  OF 
THE  MINING  LAWS  OF  NEW  SOUTH  WALES,  NEW  ZEALAND,  QUEENS- 
LAND, SOUTH  AUSTRALIA,  TASMANIA,  VICTORIA,  AND  WEST  AUSTRALIA. 
RESULTS  OF  THE  SYSTEM.  STATISTICS  OF  PRODUCTION  FROM  1851 
TO  1916 115 

CHAPTER  IX 

THE  CANADIAN  SYSTEM  OF  MINING  LAW.  DIGESTS  OF  THE  MINING 
LAWS  OF  BRITISH  COLUMBIA,  ALBERTA,  NEW  BRUNSWICK,  NEWFOUND- 
LAND, NOVA  SCOTIA,  NORTHWEST  TERRITORY,  MANITOBA,  ONTARIO, 
QUEBEC,  SASKATCHEWAN  AND  YUKON  TERRITORY.  RESULTS  OF  THE 
SYSTEM.  STATISTICS  OF  PRODUCTION  FROM  1858  TO  1916 156 

CHAPTER  X 

THE  SOUTH  AFRICAN  SYSTEM  OF  MINING  LAWS.  DIGESTS  OF  THE 
MINING  LAWS  OF  THE  CAPE  PROVINCE,  NATAL,  ORANGIA,  RHODESIA, 
AND  THE  TRANSVAAL.  RESULTS  OF  THE  SYSTEM.  STATISTICS  OF  PRO- 
DUCTION FROM  1879  TO  1916 .....  179 

CHAPTER  XI 

THE  EUROPEAN  SYSTEMS  OF  MINING  LAWS.  DIGESTS  OF  THE  MINING 
LAWS  OF  AUSTRIA-HUNGARY,  FRANCE,  GERMANY,  GREAT  BRITAIN, 
ITALY,  NORWAY,  PORTUGAL,  RUSSIA,  SPAIN,  SWEDEN,  TURKEY,  AND 
SERBIA.  RESULTS  OF  THE  SYSTEMS.  STATISTICS  OF  PRODUCTION  FROM 
1901  TO  1913  .  .  .  . .  212 

CHAPTER  XII 

MISCELLANEOUS  MINING  LAWS.  DIGESTS  OF  THE  MINING  LAWS  OF 
BRITISH  GUIANA,  BRITISH  INDIA,  CEYLON,  CHINA,  CONGO  FREE  STATE, 
CYPRUS,  DUTCH  GUIANA,  EGYPT,  FEDERATED  MALAY  STATES,  FRENCH 
GUIANA,  GOLD  COAST  AND  ASHANTI,  HAITI,  JAPAN,  MYSORE,  NIGERIA, 
SIAM  AND  BRITISH  NORTH  BORNEO 243 

CHAPTER  XIII 
THE  PROSPECTOR    ....    .  '.    .    .    .  v 286 

CHAPTER  XIV 

EXTRALATERAL  RIGHTS    .  .     291 


.CONTENTS  ix 

CHAPTER  XV 

PAGE 

DISCOVERY  OF  ORE  AS  A  PREREQUISITE  TO  A  VALID  LOCATION   ....   300 

CHAPTER  XVI 
LEASEHOLD  vs.  FEE  SIMPLE  TITLE 304 

CHAPTER  XVII 
FREE  PROSPECTING  vs.  LICENSED  PROSPECTING 307 

CHAPTER  XVIII 
PROSPECTING  AREAS 311 

CHAPTER  XIX 

. 

DEFECTS  AND  DEFICIENCIES  OF  THE  AMERICAN  LAW 313 

CHAPTER  XX 
MISCELLANEOUS  HISTORICAL  NOTES .  318 

CHAPTER  XXI 
CONCLUSION 323 

INDEX  .   329 


INTERNATIONAL  MINING  LAW 


CHAPTER  I 

HISTORY  OF  MINING  AND  OF  MINING  LAW  PREVIOUS  TO  THE 
DISCOVERY  OF  AMERICA 

Mining  law,  as  might  be  expected,  has  been  a  development 
from  the  line  of  activity  with  which  it  deals.  It  could  not  exist 
until  the  industry  itself  came  into  being.  Hence,  a  knowledge  of 
the  origins  of  mining  as  a  business  is  necessary  for  a  cle'ar  com- 
prehension of  the  fundamental  peculiarities  of  mining  law. 

There  was  a  time  (and  not  so  long  ago)  when  all  metalliferous 
deposits  were  regarded  as  the  personal  property  of  the  feudal  lord 
of  the  region  in  which  they  were  found,  no  matter  what  rights  he 
may  have  granted  for  the  use  of  the  surface.  This  assumed  sov- 
ereignty persists  in  many  countries  to-day  in  regard  to  gold  and 
silver,  because  when  coined  they  become  money,  and  the  manu- 
facture of  money  has  always  been  considered  a  State  monopoly; 
and  in  some  countries  it  persists  in  regard  to  all  the  other  desir- 
able metals  and  minerals.  When  the  will  of  the  local  sovereign 
was  the  only  law  in  existence,  there  was  really  no  law,  as  we 
understand  the  term  to-day,  for  there  was  no  concensus  of  public 
opinion  behind  his  decrees.  When  sovereign  rights  began  to 
suffer  curtailment  in  favor  of  those  of  the  community  and  in- 
dividual, these  irresponsible  edicts  were  gradually  superseded  by 
laws  which  gave  greater  recognition  to  the  rights  of  discoverers 
and  producers  of  desirable  mineral  substances. 

Again,  it  is  only  a  very  few  years — as  historical  time  goes — 
since  the  list  of  the  known  metals  included  more  than  seven,  viz., 
gold,  silver,  mercury,  copper,  tin,  lead  and  iron.  Not  until 

1 


2  INTERACTIONAL  MINING  LAW 

the  y3ar  i700  v/as  xinc  clearly  recognized  as  an  element,  and 
although  antimony  and  arsenic  were  known  to  be  individual 
substances  before  that  date,  the  metals  themselves  did  not  be- 
come articles  of  commerce  until  many  years  after.  Fifty  years 
ago  neither  aluminum,  nickel,  platinum  nor  bismuth  could  be 
purchased  in  the  market,  nor  any  of  the  ferro  metals  (manganese, 
chromium,  molybdenum,  tungsten,  vanadium  and  uranium) .  In 
fact,  many  of  this  last  list  have  been  produced  commercially 
only  during  recent  years. 

Coal  mining  as  an  industry  is  really  of  very  modern  origin. 
The  production  of  coal  in  limited  quantities,  and  for  domestic, 
use  in  the  immediate  vicinity  of  the  mine,  began  in  1750,  but  the 
industry  was  not  on  its  feet  until  1820.  Coke,  although  made 
in  England  as  early  as  1619,  did  not  become  a  successful  com- 
petitor of  charcoal  in  the  manufacture  of  iron  until  1740. 

So  we  shall  find,  as  we  dig  into  the  subject,  that  mining  law  has 
been  from  the  first  merely  a  modification  of  the  common  law 
relating  to  real  property;  and  to  understand  properly  the  causes 
that  have  led  to  its  differentiation  into  a  subject  by  itself,  it  is 
necessary  to  become  acquainted  with  the  beginnings  of  mining. 
Gold,  which  was  probably  the  first  recognized  of  the  metals,  has 
been  an  object  of  search  for  at  least  8000  years.  Yet  mining  of 
gold  as  a  commercial  operation  cannot  be  said  to  have  begun 
before  its  almost  simultaneous  discovery  in  California  and  Aus- 
tralia less  than  seventy  years  ago ;  for,  previous  to  that  momen- 
tous occurrence,  the  entire  gold  supply  of  the  world  came  from 
placer  mines,  or  from  quartz  veins  yielding  visible  metal,  from 
which  it  was  separated  by  the  crudest  processes  of  hand  crushing 
and  washing. 

Reducing  iron  from  meteorites  was  undoubtedly  one  of  man's 
earliest  achievements,  and  in  certain  regions  favored  with  very 
pure  and  high  grade  ores  the  metal  has  been  in  use  since  the  dawn 
of  history.  But  its  production  in  commercial  quantities  is  a  mat- 
ter of  very  recent  date,  as  we  shall  see. 

Perhaps  the  earliest  organized  mining  of  which  there  is  any 
record  was  at  Laurium  in  Greece.  Here  was  discovered,  at  least 


HISTORY  OF  MINING  AND  MINING  LAWS  3 

as  far  back  as  1000  B.C.,  very  notable  deposits  of  silver-lead- 
zinc  ore.  The  location  is  on  the  coast,  and  it  is  believed  that  the 
Phoenicians  held  and  worked  the  mines  for  some  time.  Evi- 
dences of  Mycenaean  civilization  have  been  found  in  their  imme- 
diate vicinity.  There  is  proof  that  the  mines  were  actively 
worked  by  the  Greeks  between  600  B.C.  and  400  B.C.,  and  that 
so  much  silver  was  produced  that  the  Athenian  state,  in  whose 
territory  they  were,  became  very  wealthy.  They  were  owned  by 
the  Government,  which  leased  them  to  its  citizens  on  royalty, 
and  the  actual  mining  operations  were  carried  on  by  slave  labor. 
The  deposits  of  the  Iberian  peninsula,  which  yielded  to  the 
ancients  vast  quantities  of  silver,  were  being  worked  by  slaves 
under  Carthaginian  taskmasters  as  early  as  250  B.C.,  and  when 
Rome  succeeded  to  the  sovereignty  of  the  country  the  system 
was  continued. 

It  is  probable,  though  perhaps  it  cannot  yet  be  proven,  that 
the  most  ancient  metal-mining  industry  of  a  more  or  less  organized 
character  was  that  which  grew  up  slowly  through  the  ages  at  the 
East  Indian  tin  deposits.  To  understand  its  importance  we  must 
recall  the  fact  that  copper  is  the  only  metal  existing  in  a  native 
or  pure  condition  in  any  quantity  in  the  crust  of  the  earth,  and 
accordingly  the  archaeologists  generally  find  at  the  beginnings 
of  all  civilizations  a  period  when  implements,  ornaments  and 
weapons  of  the  metal  were  used.  Succeeding  it,  and  before  an 
extensive  knowledge  of  the  metallurgy  of  iron  was  current,  is 
generally  found  an  age  of  bronze,  an  alloy  composed  of  copper  and 
tin.  Tin  is  never  found  native,  but  its  principal  ore — cassiterite 
—is  easily  reduced,  at  a  comparatively  low  temperature,  to  the 
metallic  state.  As  cassiterite  is  black  or  dark  brown>  and  quite 
heavy,  it  no  doubt  attracted  the  attention  of  men  at  a  very  early 
age,  and  when,  by  some  accident,  it  was  found  to  yield  in  abund- 
ance a  white  metal,  which  probably  was  at  first  mistaken  for 
silver,  their  astonishment  must  have  been  great.  However  it 
came  about,  at  some  place  and  at  some  time  this  new  white,  soft 
metal  came  into  contact  with  copper  tools  or  weapons,  and  the 
very  useful  alloy,  bronze,  was  discovered,  which  would  take  and 


4  INTERNATIONAL  MINING  LAW 

keep  an  edge  under  circumstances  where  copper  alone  failed  to 
do  so. 

Unlike  gold  and  silver,  tin  occurs  in  payable  quantities  in  only 
a  few  places  in  the  earth's  crust,  and  no  where- so  abundantly  as  in 
certain  parts  of  the  Malayan  peninsula  and  of  the  islands  adjacent 
to  it.  It  exists  there  in  the  form  of  dark  and  heavy  grains  in 
alluvial  gravel  deposits,  from  which  it  is  easily  separated  by  the 
simplest  methods  of  hydraulic  mining.  The  area  of  these  Asi- 
atic placer  regions  is  very  extensive,  and  the  proofs  of  their  exploi- 
tation in  very  remote  ages  are  abundant  There  is  also  no  doubt 
that,  in  the  centuries  during  which  the  Phoenicians  were  the 
dominant  people  of  antiquity,  a  very  considerable  commerce  was 
carried  on  between  Asia  and  Europe,  one  of  the  principal  items 
of  which  was  tin.  For  this  useful  metal  Europe  gave  silver  in 
exchange,  which  was  scarce  in  Asia,  but  abundant  around  the 
Mediterranean  basin. 

The  central  European  mining  region,  of  the  Sudetic  Alps,  that 
broad  series  of  parallel  ranges  in  Bohemia  and  Moravia  connect- 
ing the  Carpathians  with  the  Swiss  mountains,  attracted  the 
attention  of  the  Romans  when  their  sway  had  extended  itself 
into  that  region,  during  the  first  century  of  the  present  era,  but 
their  tenancy  there  was  too  brief  and  uncertain  to  allow  them  to 
organize  an  industry  except  of  the  most  primitive  kind  on  the 
basis  of  the  great  mineral  wealth  that  the  country  contained. 
But  when  the  Empire  fell  to  pieces  these  regions  gradually 
passed  into  the  possession  of  Teutonic  and  Teuto-Slavic  peoples, 
under  whose  control  mining  slowly  became  a  business  of  some 
standing.  In  the  8th  century  there  appears  to  have  been  con- 
siderable activity  there,  based  mainly  upon  the  production  of 
silver,  lead  and  copper.  The  great  salt  mines  at  Wielitzka  were 
actively  producing  in  1040.  The  Freiburg  silver  mines  were  dis- 
covered (or  probably  re-discovered)  sometime  between  1100  and 
1200,  the  Kuttenberg  district  about  1225,  the  Przibram  lodes  in 
1300,  the  Idria  quicksilver  mines  in  1497,  the  Clausthal  argen- 
tiferous lead  veins  between  1500  and  1600,  and  early  in  the  16th 
century  there  was  a  mint  at  Jpa,chimsthal  at  which  the  Joachims- 


HISTORY  OF  MINING  AND  MINING  LAWS  5 

thaler — the  ancestor  of  the  modern  dollar — was  coined.  At 
Iglau  in  Bohemia,  where  it  is  thought  that  the  rich  silver  veins  of 
the  vicinity  were  worked  by  the  Celts  perhaps  as  early  as  A.D.  500, 
there  is  extant,  in  the  Town  Hall,  a  code  of  mining  laws  dating  as 
far  back  as  1249.  These  constitute,  so  far  as  I  have  been  able  to 
ascertain,  the  first  codification  of  laws  relating  to  the  mining 
industry.  That  they  were  as  yet  merely  a  statement  of  the  rules 
under  which  the  local  sovereign  permitted  the  peasantry  under 
his  control  to  explore  for  and  to  extract  ore  from  landed  property 
considered  as  belonging  solely  to  him,  does  not  detract  from  their 
interest;  for  throughout  the  Russia  of  to-day  similar  laws  until 
recently  prevailed,  all  the  unoccupied  land  of  the  Empire, 
besides  vast  areas  of  the  occupied  land,  being  regarded  as  the 
personal  property  of  the  Czar.  It  was  these  central  European 
mines  that  gave  to  Germany  her  acknowledged  primacy  in 
mining  knowledge  and  science  in  the  civilized  world,  which  she 
retained  until  the  occupation  became  commercialized  in  the 
United  States  during  the  eventful  years  between  1860  and  1880. 

It  was  not  until  1623  that  the  Norwegian  silver  mines  at  Kongs- 
burg  were  discovered.  About  a  century  later  gold  mining  as  an 
industry  began  in  the  Urals. 

Copper,  as  a  metal,  never  seems  to  have  created  an  excitement 
among  the  ancients,  or  even  during  mediaeval  times.  This 
was  probably  due  to  the  fact  that  it  was  found  abundantly 
enough  in  the  native  condition  during  the  copper  and  bronze 
ages  of  each  people  at  many  places — Sinai,  Cyprus,  Persia,  cen- 
tral and  northern  Africa,  Spain,  etc. — so  that  it  was  not  neces- 
sary to  obtain  it  from  its  ores.  In  due  time,  however,  simple 
methods  of  its  reduction  from  its  carbonates,  oxides  and  even 
sulphides  were  discovered;  but  by  that  time  the  metallurgy  of 
iron  had  become  so  well  developed,  and  the  latter  metal  proved  so 
superior  for  the  manufacture  of  weapons  and  tools,  that  the 
sole  demand  for  the  red  metal  was  for  ornamentation,  for  which  a 
small  annual  production  was  ample. 

Iron  first  became  known  as  a  metal  in  the  form  of  meteorites, 
and  there  are  astronomers  who  believe  that  in  primitive  hum  an 


6  INTERNATIONAL  MINING  LAW 

ages  the  arrival  of  these  visitants  from  space  was  more  frequent 
than  at  present,  or  perhaps  more  often  noticed.  However,  the 
reduction  of  the  metal  from  its  most  common  ore — hematite — 
was  a  simple  matter,  as  soon  as  the  use  of  fire  and  the  advantages 
of  charcoal  as  a  fuel  became  generally  known,  and  the  widespread 
occurrence  of  this  ore  was  not  favorable  to  the  production  of  any 
particular  excitement.  With  the  ancients  iron  and  steel  pro- 
duction was  never  an  industry,  although  it  became  the  occupa- 
tion of  numerous  individuals  in  all  parts  of  the  human  family, 
who,  either  by  accident  or  through  intelligent  study,  became 
more  or  less  proficient  in  the  production  of  high-grade  steel.  In 
the  Middle  Ages  Damascus  and  Toledo  blades  had  a  great  vogue, 
as  also  certain  brands  of  weapons  and  armor  made  in  India.  This 
we  now  know  was  due  as  much  to  the  purity  and  freedom  from 
phosphorus  and  sulphur  of  the  ores  from  which  these  articles  were 
made,  as  to  the  skill  of  the  makers  thereof.  Also  the  fine  heating 
qualities  of  the  charcoal  used  had  much  to  do  with  the  favorable 
outcome,  for  it  is  now  well  known  that  certain  kinds  of  wood, 
produced  mainly  in  tropical  or  semi-tropical  regions,  will  yield  a 
charcoal  of  far  higher  metallurgical  value  than  others.  Fifty 
years  ago  Swedish  charcoal  iron  and  Russian  planished  iron 
were  in  great  demand  for  special  uses  on  account  of  their  purity, 
resulting  from  the  clean  ore  from  which  they  were  produced,  and 
the  fine  fuel  used.  But  both  have  now  been  supplanted  by  mod- 
ern steels  of  many  kinds. 

Articles  of  iron,  believed  to  have  been  fashioned  as  early  as 
4000  B.C.,  have  been  found  in  the  Pyramids.  The  metal  was 
extensively  in  use  among  the  Assyrians  from  2000  B.C.  to  600 
B.C.,  and  among  the  Greeks  from  800  B.C.  When  the  Romans 
reached  Britain  in  B.C.  55,  they  found  it  in  common  use  among 
the  aborigines  of  the  country.  During  the  Middle  Ages  (5th  to 
15th  century)  knowledge  of  and  demand  for  the  metal  steadily 
increased,  and  by  1350  in  Germany  the  science  of  heat  production 
had  reached  the  point  where  large  iron  castings  became  possible. 
This  knowledge  and  proficiency  spread  into  France  and  England, 
and  when  in  1740  the  manufacture  of  good  coke  became  possible 


HISTORY  OF  MINING  AND  MINING  LAWS  7 

the  industry  was  firmly  established,  especially  in  those  places 
where  there  existed  a  superior  quality  of  coking  coal.  It  was  this 
circumstance  that  carried  the  primacy  in  iron  and  steel  manufac- 
ture to  England,  whose  coke  is  still  the  best  produced  in  Europe. 
In  1855  the  industry  was  further  advanced  in  England  by  the 
invention  of  the  Bessemer  converter;  and  this  really  marks  the 
beginning  of  the  modern  art,  which  therefore  is  not  much  more 
than  half  a  century  old. 

When  bronze  was  supplanted  by  iron  and  steel  for  the  manufac- 
ture of  weapons  and  tools,  tin  mining  languished  wherever  it  had 
previously  flourished.  For  there  were  few  other  uses  for  the 
metal  than  the  production  of  bells,  coins  and  statuary,  which 
called  for  small  quantities  only.  Hence  the  Chinese  and  Malay 
deposits  were  practically  forgotten  by  the  western  nations,  and 
when  the  metal  was  found  in  payable  quantities  in  Spain,  Austria, 
and  Cornwall  it  caused  little  interest  in  the  mining  world.  How- 
ever, in  1789  Dutch  experimenters  of  the  city  of  Haarlem  appear 
to  have  taken  some  first  steps  in  the  art  of  electroplating,  about 
which  there  was  much  interest  on  the  continent  on  account  of  the 
discoveries  of  Volta  and  Galvani  in  the  same  line.  But  it  was  not 
until  after  Faraday,  in  1834,  worked  out  the  laws  of  electrolysis 
that  tin  plate  manufacture  became  possible  commercially,  and 
that  mining  in  Cornwall  on  the  tin-bearing  lodes  that  were  so 
plentiful  there,  and  that  had  been  known  ever  since  their  dis- 
covery by  -the  Phoenicians,  attained  its  greatest  days  of  pros- 
perity, and  gave  to  the  Cornish  miner  the  reputation  he  deserv- 
edly held  for  so  long  as  a  proficient  in  underground  work. 

In  1837  the  first  English  patent  describing  a  method  of  coating 
iron  with  zinc  was  granted,  which  laid  the  foundation  of  an  indus- 
try that  has  since  become  even  more  important,  for  by  that  time 
the  metallurgy  of  zinc  had  been  fairly  well  worked  out  in  Belgium 
and  Germany,  as  well  as  in  France. 

The  metallic  character  and  properties  of  lead  were  well  known 
to  the  Romans,  as  witness  the  crude  piping  made  of  the  metal  and 
put  to  use  in  many  of  the  houses  that  have  been  uncovered  in  the 
ruins  of  Pompeii.  But  there  is  no  evidence  of  any  great  produc- 


8  INTERNATIONAL  MINING  LAW 

tion  of  the  metal  from  even  the  Laurium  mines  in  Greece,  whose 
ores  appear  to  have  been  worked  mainly  for  their  silver  contents, 
in  the  recovery  of  which  the  bulk  of  the  lead  was  volatilized  and 
lost.  The  manufacture  of  paint,  shot  and  piping  are,  and  always 
have  been,  the  principal  uses  to  which  this  metal  is  put.  But 
these  are  modern  arts,  and  lead  was  in  small  demand  previous  to 
the  15th  century. 

Mercury  also  was  a  metal  which  the  ancients  used  but  little, 
although  it  was  known  certainly  as  early  as  300  B.C.  being  sup- 
posed at  first  to  be  a  liquid  form  of  silver,  from  whence  its  other 
name.  The  Spanish  mines  at  Almaden  were  worked  in  a  desul- 
tory way  by  the  Romans,  but  mainly  for  the  raw  ore — cinnabar — 
from  which  the  highly  valued  pigment  vermilion  was  made.  The 
Austrian  mercury  mines  at  Idria  were  not  discovered  until  1497, 
by  which  time  someone  had  invented  a  process  of  making  mirrors 
by  coating  one  side  of  a  sheet  of  glass  with  an  amalgam  of  mer- 
cury and  tin,  in  consequence  of  which  a  fair  demand  arose  for  the 
metal.  This  art  is  said  to  have  had  its  origin  in  Venice,  about 
1300,  from  which  it  spread  through  Germany  and  France,  reach- 
ing England  in  1673.  Previous  to  this  invention  mirrors  were 
made  of  polished  metal,  either  silver  or  bronze.  In  1836  Liebig 
made  the  first  attempt  to  substitute  a  silver  for  a  tin  amalgam,  and 
the  art  was  finally  perfected  in  1855  by  Pettijean  in  France,  where 
it  has  since  attained  its  highest  state  of  perfection. 


CHAPTER  II 

HISTORY  OF  MINING  AND  OF  MINING  LAW  SINCE  THE  DISCOVERY 

OF  AMERICA 

The  general  review  of  the  subject  in  Chapter  I  shows  that  min- 
ing is  really  a  very  modern  industry,  and  that  mining  law  must  of 
necessity  be  of  recent  origin.  In  fact,  we  may  dismiss  at  once  all 
expectations  of  discovering  any  more  than  its  beginnings  in 
Europe,  or  any  other  part  of  the  old  world;  for,  long  before  it  was 
anything  more  than  a  haphazard  occupation  of  individuals,  the 
feudal  system  and  its  theories  of  land  tenure  had  tied  up  all  the 
land  in  the  older  settled  parts  of  the  globe,  and  made  operations 
of  any  kind  thereon  dependent  wholly  upon  the  will  of  the  local 
sovereigns,  who  promulgated  such  rules  and  regulations  as  they 
saw  fit.  These  naturally  were  no  more  what  would  now  be 
called  law  than  were  any  of  the  other  customs  and  regulations 
that  have  always  accompanied  the  practice  of  human  vassalage. 

But  upon  the  discovery  of  the  new  world,  and  the  exploration 
of  Mexico,  Central,  and  South  America,  following  the  conquest 
and  occupation  by  Spain  and  Portugal,  a  new  era  began.  The 
stream  of  precious  metal  that  came  across  the  Atlantic,  at  first 
from  the  plunder  of  Aztec  and  Peruvian  civilization,  and  later 
from  placer  deposits,  attracted  immediate  attention,  and  drew  a 
horde  of  adventurous  spirits  across  the  ocean,  each  with  some 
kind  of  a  recommendation  from  his  European  sovereign  to  the 
Viceroy  of  his  nation  in  New  Spain  or  New  Portugal.  At  first 
these  newcomers  were  easily  taken  care  of.  So  long  as  there  were 
desirable  tracts  of  land  to  give  away,  .grants  were  freely  and  even 
lavishly  made.  These  gave  to  the  grantees  practically  sovereign 
rights  within  their  limits,  including  the  native  inhabitants  as  well, 
which  held  as  long  as  agreed  royalties  were  promptly  remitted  to 

9 


10  INTERNATIONAL  MINING  LAW 

the  Government.  But  a  time  soon  came,  even  in  the  opening  up 
of  such  a  vast  new  area,  when  the  few  outcroppings  of  mineral 
known  to  the  aborigines  had  been  given  away,  and  prospecting 
became  a  necessity.  Up  to  this  point  the  mining  customs  and 
regulations  of  the  old  world  had  simply  been  transplanted  into 
the  new,  and  consisted  practically  of  such  laws  as  were  necessary, 
with  the  aid  of  the  church,  to  keep  the  natives  and  the  low-class, 
half-breed  populations  that  had  arisen  in  such  a  condition  of 
poverty  and  dependence  as  would  enable  the  land  owners  to  com- 
mand their  services  at  practically  no  cost  above  that  of  food, 
shelter  and  clothing.  The  white  man  from  Europe  never  became 
a  prospector  or  miner.  Such  work  was  beneath  his  dignity.  But 
he  could  induce  or  compel  his  subjects  to  explore,  and  so  through 
offers  of  reward  and  threats  of  punishment  many  new  and  rich 
mineral  areas  were  discovered.  While  this  kind  of  exploration 
was  in  progress,  difficulties  frequently  arose  on  account  of  the 
competing  activity  of  the  followers  and  subjects  of  the  numerous 
Court  favorites  who  had  secured  or  had  been  promised  grants, 
which  in  due  time  made  necessary  the  promulgation  of  laws 
ostensibly  intended  for  the  encouragement  of  the  mining  industry, 
but  really  having  for  their  object  the  prevention  of  such  compe- 
tition. But  again  they  were  no  more  in  spirit  than  the  rules  and 
regulations  that  had  preva  led  in  Europe  for  centuries,  modified 
only  to  such  an  extent  as  was  made  necessary  by  reason  of  the 
different  character  of  the  subject  population  and  the  freer  envir- 
onment of  a  newly  opened  land.  The  old  world  peasant,  after 
centuries  of  oppression  and  deprivation,  had  lost  hope,  had 
become  servile,  and  had  learned  to  make  the  best  of  it.  His 
brother  in  the  new  world  accepted  the  yoke  only  as  a  last  resort, 
and  after  every  avenue  of  resistance  or  escape  had  been  tried  in 
vain.  As  a  result  of  this  bitter  contest  there  came  a  time  when 
for  each  of  the  colonies  the  mining  industry  began  to  decline,  and 
ultimately  ceased  to  be  of  importance.  As  the  old  mines  became 
exhausted,  or,  reaching  water  level,  could  not  be  worked  profit- 
ably any  longer,  there  was  nothing  in  the  way  of  new  discoveries 
to  take  their  place.  In  1571  the  Inquisition  was  introduced  from 


HISTORY  OF  MINING  AND  MINING  LAWS  11 

Spain,  in  the  hope  that  its  terrors  would  be  of  some  service  in 
spurring  the  natives  to  renewed  energy  in  discovery,  or  at  least 
stem  the  tide  of  rebellion  that  was  slowly  but  surely  increasing 
among  them.  This  diabolical  institution  did  assist  for  a  while  in 
enabling  Spain  and  Portugal  to  retain  control  of  their  American 
colonies,  but  at  the  same  time,  as  elsewhere,  it  brought  enterprise 
to  an  end,  and  stopped  intellectual  progress.  For  a  couple  of 
centuries  the  whole  of  Latin  America  lay  practically  dormant,  its 
marvelous  mineral  resources  neglected,  its  white  populations 
scarcely  increasing,  and,  in  fact,  largely  undergoing  absorption 
into  the  mass  of  the  aborigines,  only  those  of  its  cities  on  or  close 
to  the  coasts  maintaining  their  standing  and  trade,  and  its 
interior  being  practically  abandoned  to  the  native  and  the 
mestizo. 

Early  in  the  19th  century  this  part  of  the  world  began  to  ex- 
perience a  revival.  Revolution  and  banditry,  already  common 
enough,  became  the  normal  condition  of  affairs,  but  now  with  a  new 
motive  behind  them.  By  1825  the  Spanish  yoke  had  been 
thrown  off  everywhere,  and  in  its  place  fifteen  independent  repub- 
lics had  arisen,  Brazil  becoming  an  independent  empire  and 
remaining  so  until  1891  when  it  too  joined  the  roll  of  the  Latin 
American  democracies. 

During  the  first  half  of  the  19th  century,  in  spite  of  the  great 
political  changes  that  had  taken  place  in  Latin  America,  little  if 
any  alterations  were  made  in  its  laws  affecting  mining.  The  po- 
litical leaders  were  too  intently  occupied  with  the  task  of  keeping 
themselves  in  power  or  in  driving  out  those  who  were  in  to  pay 
much  attention  to  anything  else,  and  so  the  industry  languished. 
But  in  the  last  half  a  revival  occurred,  particularly  in  two  places. 
One  of  these  was  Chile,  whose  remarkable  resources  in  saltpeter 
and  copper  attracted  the  attention  of  European  capital;  and  the 
other  Mexico,  whose  proximity  to  those  parts  of  the  United  States 
where  intense  mining  activity  existed  led  gradually  to  the  coming 
of  American  capital  during  the  last  quarter  of  the  century. 
Responding  to  these  external  impulses  some  of  the  Latin  republics 
took  steps  towards  modernizing  their  mining  laws,  but  in  doing  so 


12  INTERNATIONAL  MINING  LAW 

retained  in  essentials  the  fundamental  principle  upon  which,  in 
the  past,  the  conduct  of  the  industry  had  rested.  This  was  the 
theory  that  mining  rights  should  be  granted  mainly  in  the  form  of 
concessions,  in  the  details  of  which  the  people  as  a  whole  need  not 
be  consulted,  everything  being  left  for  settlement  by  the  junta 
that,  for  the  time  being,  held  control  of  the  government.  As 
such  a  system  is  always  favorable  to  capital,  because  it  can  be 
easily  dealt  with,  the  foreign  influences  not  only  favored  it,  but 
took  much  part  quietly  and  unobtrusively  in  arranging  its 
details.  The  mining  codes  that  resulted  represented  no  advance 
in  their  conception  of  fundamental  human  rights,  and  conse- 
quently their  effect  has  been  almost  negligible  in  producing  any 
modernization  in  the  relations  of  the  two  great  classes  of  the  peo- 
ple. Under  them,  however,  considerable  material  advance  in  the 
industry  has  taken  place,  particularly  in  Mexico,  Chile,  Peru  and 
Bolivia,  where  also  other  factors  have  contributed  to  the  result. 
Because  of  the  still  vast  areas  of  unexplored  regions  in  these  coun- 
tries, it  may  yet  be  hoped  that  the  progress  being  made  in  other 
parts  of  the  world  in  the  way  of  a  better  understanding  in  such 
matters  will  in  due  time  result  in  provisions  for  the  disposal  of 
what  is  left  of  the  public  domain  of  value  for  its  mineral  contents, 
more  in  accord  with  the  spirit  of  the  age.  The  bitter  struggle 
that  has  recently  occurred  in  Mexico  has,  at  its  roots,  the  deter- 
mination on  the  one  side  to  settle  these  land  questions  in  modern 
ways,  and  on  the  other  to  retain  the  old  systems  and  principles 
inherited  from  Europe. 

So,  in  summarizing  this  part  of  the  subject,  while  we  may  con- 
sider the  systems  of  mining  law  in  vogue  in  Latin  America  in  the 
light  of  most  interesting  links  connecting  European  customs  and 
practice  with  those  of  the  new  world,  we  cannot  reasonably  look 
for  much  in  them  worthy  of  being  incorporated  into  our  own 
codes.  The  history  of  their  origin  and  growth  forbids  this. 
They  are  laws  made  for  subject  populations,  and  for  governments 
carried  on  professedly  for  the  exclusive  benefit  of  the  privileged 
classes. 

With  the  nearly  simultaneous  discovery  of  gold  in  California 


HISTORY  OF  MINING  AND  MINING  LAWS  13 

and  in  Australia  in  the  years  between  1847  and  1852,  primacy  in 
the  business  of  metal  mining  passed  into  the  hands  of  the  Anglo- 
Saxon  peoples,  where  it  now  rests.  Before  considering  in  detail 
the  various  codes  of  mining  law  that  have  arisen  since  then  among 
the  several  branches  of  the  family  it  will  be  advisable  to  recount 
briefly  the  historical  situation  a  little  previous  to  and  at  the  time 
of  the  discovery  Without  this  it  will  be  difficult  to  understand 
why  legal  conceptions  on  the  same  subject  so  different  from  those 
reached  in  Latin  America  have  resulted,  and  also  why,  among 
themselves,  so  much  variety  in  detail  of  fundamental  principles 
exists. 

In  the  first  place,  in  both  countries  (California  and  Australia) 
the  native  population  was  so  insignificant  numerically  that  it  was 
easily  pushed  aside.  What  few  conflicts  did  occur  caused  no  halt 
or  delay  in  the  rush  of  the  incoming  whites,  and  it  left  no  serious 
trail  of  brutality  or  cruelty  in  its  wake.  Nor  was  there  an  ancient 
civil^ation  to  plunder.  The  American  Indian  of  the  West  and 
the  Australian  blackfellow  were  both  living  in  the  Stone  age  of 
human  culture  when  the  wh  te  man  poured  into  their  country. 
Metals  were  unknown  to  them  and  possessed  no  significance. 
The  stranger  was  welcome  to  all  he  could  find  so  long  as  he 
did  not  interfere  with  the  natives'  hunting  rights  and  social 
customs. 

Again,  neither  of  these  aboriginal  people  could  be  induced  to  go 
to  work  for  the  newcomers.  They  preferred  their  wild  life,  and 
exhibited  no  inclination  to  adopt  the  white  man's  ways.  The 
result  was  that  the  immigrants  had  to  go  to  work  themselves. 
For  this  in  both  cases  they  were  well  prepared,  as  the  great  bulk 
of  the  emigration  to  both  California  and  Australia  consisted,  at 
first,  of  sturdy  individuals  of  the  farming  and  artizan  classes,  as  a 
rule  fairly  well  educated  in  fundamentals,  and  possessed  of  that 
independence  o£  spirit  that  marks  the  true  pioneer.  But  in  this 
respect  the  Californian  argonaut  had  somewhat  the  advantage, 
coming  as  he  did  from  a  part  of  the  world  where  self  government 
had  been  in  effect  for  nearly  a  century,  while  as  yet  in  all  the 
lands  that  contributed  population  to  the  Australian  goldfields 


14  INTERNATIONAL  MINING  LAW    • 

the  peasantry  had  had  no  experience  in  such  matters,  and  was 
quite  accustomed  to  be  guided  by  the  views  of  the  privileged 
classes.  As  we  shall  see,  these  circumstances  produced  some 
remarkable  divergence  in  results. 

Lastly,  neither  of  the  new  communities  had  a  mining  code  to 
guide  its  activity,  nor  any  inherited  traditions  on  the  subject.  In 
both  cases  the  slate  was  clean,  and  it  became  their  task  to  write 
their  own  laws  as  best  they  could.  What  resulted  was  inevitable 
and  most  interesting.  The  Americans  at  once  organized,  elected 
officials,  constructed  a  code,  and  then  dropped  politics  and 
went  to  work  exploring  the  country.  The  laws  so  enacted  were 
few  in  number,  simple  in  principle,  and  embodied  some  doctrines 
.that  seemed  to  be  entirely  warranted  by  the  conditions  existing 
and  the  unusual  environment.  As  might  have  been  expected 
they  were  rather  crude  and  unfinished  in  detail.  While  they 
showed  remarkable  notions  of  justice  and  common  sense  at  their 
foundation,  their  superstructure  was  sketchy  and  pinned  together 
without  much  regard  for  the  science  of  economic  geology  or  the 
theories  of  law.  They  paid  liberally  for  this  new  departure  in 
jurisprudence  later  on,  but  the  results  have  proved  to  be  worth 
the  price. 

The  Australian  discoveries  occurred  a  few  years  later,  and 
quite  a  sprinkling  of  American  pioneers  were  in  the  first  stam- 
pedes. As  in  California  the  miners  quickly  got  together  for 
organization  purposes.  Those  of  European  origin,  having  had 
little  or  no  experience  in  lawmaking,  took  counsel  with  the  Ameri- 
cans present,  and  having  considered  the  California  code,  appre- 
ciated its  fundamental  justice  as  well  as  its  broad  liberality. 
Knowing  also  that  it  was  producing  tremendously  satisfactory 
results,  they  decided  to  adopt  its  doctrines  with  a  few  slight  and 
unimportant  modifications  necessitated  by  the  different  environ- 
ment. But  here  the  matter  did  not  rest,  for  there  was  an  estab- 
lished government  in  Australia  at  the  time,  as  against  none  at  all 
in  California.  Consequently  when  mining  litigation  began  in 
the  new  communities  in  Victoria  and  New  South  Wales — just  as 
it  did  in  America — -.and  became  vexatiously  active,  the  conserva- 


HISTORY  OF  MINING  AND  MINING  LAWS  15 

five  tendencies  that  arc  so  strong  in  all  British  lands  began  to 
agitate  for  the  abolition  of  the  Calif ornian  doctrines,  and  the  sub- 
stitution of  theories  of  land  tenure  more  in  consonance  with  Euro- 
pean customs  and  practice.  This  succeeded,  and  in  1866  the 
laws  first  established  by  the  miners  were  repealed,  and  replaced 
by  the  system  now  in  existence. 

On  the  other  hand,  in  the  western  mining  states  of  America  no 
serious  efforts  were  made  to  change  the  laws  for  nearly  fifty 
years,  and  up  to  date  no  alterations  in  fundamental  principles 
have  occurred. 

When  mining  began  in  Canada  (in  British  Columbia),  a  similar 
series  of  events  took  place.  The  mining  law  enacted  there  was 
a  copy  of  the  American  statute  in  all  essentials.  But  in  1897  it 
was  repealed,  and  for  practically  the  same  reasons  that  caused 
the  abandonment  of  the  doctrines  at  its  foundation  in  the  Aus- 
tralian colonies.  In  place  of  it  was  substituted  a  code  based  upon 
the  theories  at  the  foundation  of  the  Australian  system,  yet  differ- 
ing much  in  detail.  There  is  in  fact  enough  variation  in  it  and 
in  the  mining  laws  of  the  other  provinces  of  Canada  to  warrant 
consideration  of  them  by  themselves,  and  this  plan  will  accord- 
ingly be  followed. 

In  South  Africa,  where  the  British  colonists  have  built  up  a 
magnificent  mining  industry  on  the  basis  of  black  labor,  and 
where  the  temptation  has  been  great  to  introduce  some  form  of 
beneficent  slavery,  it  is  vastly  to  the  credit  of  the  whites  that 
nothing  of  the  kind  has  been  done.  But,  on  account  of  the  abso- 
lute non-existence  of  a  white  laboring  class  in  that  part  of  the 
world,  the  theory  has  been  put  into  force  and  accepted,  that  all 
kinds  of  unskilled  labor  must  be  performed  by  natives  under  the 
direct  supervision  of  white  overseers,  while  the  black  man  is 
legally  debarred  from  rising  above  his  class,  or  acquiring  any 
skilled  ability.  This  factor,  together  with  the  very  peculiar 
conditions  existing  in  the  Transvaal  and  Rhodesia  when  they 
came  into  the  possession  of  the  whites,  puts  the  South  African 
mining  codes  into  a  class  by  themselves,  and  they  will  be  so 
treated. 


16  INTERNATIONAL  MINING  LAW 

We  have,  then,  to  consider  in  detail,  and  in  the  order  in  which 
they  arose,  the  Latin  American  system,  the  American  system, 
the  Australian  system,  the  Canadian  system,  and  the  South 
African  system.  But  before  doing  so  it  will  be  of  advantage  as 
well  as  interesting,  to  consider  the  ancient  codes  of  Germany  and 
Spain,  and  those  which  were  in  force  in  Latin  America  while  they 
still  were  colonies  of  Spain  and  Portugal. 


CHAPTER  III 
ANCIENT  GERMAN  MINING  LAWS  AND  CusTOMS1 

In  the  time  of  Agricola  (born  1494,  died  1555),  there  was  in 
practice  quite  a  body  of  mining  law — of  its  kind — in  that  part  of 
Teutonia  traversed  by  the  Sudetic  Alps,  which  at  the  present  time 
constitute  the  southern  border  of  Saxony  and  the  northern  of 
Bohemia,  and  which,  as  they  are  followed  eastward,  pass  cen- 
trally through  Silesia.  In  these  mountains  mining  had  been 
active  already  for  certainly  800  years,  that  is,  since  the  seventh 
century.  From  the  first  these  laws  had,  of  course,  been  nothing 
more  than  the  decrees  of  the  ruling  princes  who,  from  time  to 
time,  held  the  region  by  conquest  or  the  accident  of  birth,  and 
naturally  they  were  promulgated  with  the  intent  of  placing  all  the 
hazards  of  the  business  on  the  shoulders  of  the  miner,  and  getting 
all  that  was  possible  of  the  results  of  his  labor  without  completely 
discouraging  him.  In  Agricola's  period  this  body  of  decrees  had 
become  fairly  liberal  for  their  time.  The  chief  mining  function- 
ary, who  was  directly  responsible  to  the  ruler,  was  the  Mining 
Prefect,  who  also  represented  the  last  court  of  appeal  in  all 
affairs  relating  to  mines  in  all  the  mining  districts  under  the 
sovereignty  of  that  ruler.  Under  him,  in  each  district,  was  the 
Bergmeister,  who  dealt  directly  with  the  miner. 

The  only  kind  of  mining  property  recognized  was  the  leasehold, 
which,  once  granted,  could  be  held  indefinitely  as  long  as  the 
holder  maintained  reasonably  continuous  and  energetic  work, 
and  paid  his  royalties  promptly. 

The  unit  mining  claim  was  called  a  "  Meer,"  and  was  an  area 
approximately  42  feet  square,  and  therefore  about  one  twenty- 

1  Abstracted  from  Hoover's  translation  of  Agricola. 

17 


18  INTERNATIONAL  MINING  LAW 

fourth  part  of  an  acre.  There  were  however  several  other  kinds 
of  meers,  as  follows : 

The  ancient  "  Head  Meer,"  which  was  bestowed  on  the  dis- 
coverer of  a  new  vein  as  a  reward  for  the  discovery,  was  the  equiva- 
lent of  seven  unit  meers,  placed  side  by  side  in  a  line  along  the 
outcrop  or  strike  of  the  lode,  giving  a  block  of  ground  294  feet 
long  and  42  feet  wide,  and  containing  about  one-quarter  of  an 
acre.  Next  was  the  "Long  Meer,"  consisting  of  four  unit  meers 
placed  side  by  side  and  forming  a  block  168  feet  long  and  42  feet 
wide.  Finally  there  was  the  "  Regular  Meer,"  consisting  of  two 
unit  meers  forming  a  block  84  feet  long  and  42  feet  wide.  All  of 
these  were  lode  claims.  The  region  was  one  of  veins  predomi- 
nantly, producing  mainly  silver-lead  ores,  with  which  were  associ- 
ated more  or  less  copper,  iron,  and  zinc,  and  occasionally  bismuth. 
All  ores  were  sulphides  or  tellurides,  with  comparatively  little 
associated  gold.  Consequently  there  were  no  placers,  and  no 
need  of  placer  claims. 

The  procedure  for  acquiring  title  was  as  follows :  A  new  discov- 
ery having  been  made,  the  Bergmeister,  accompanied  by  one  or 
more  of  his  staff  of  officials,  such  as  the  T.the  Gatherer,  the  Cash- 
ier, the  Mining  Clerk,  etc.,  and  also  by  two  reputable  citizens,  was 
led  by  the  discoverer  to  the  new  find.  On  arrival  the  latter,  in 
the  presence  of  the  assembled  witnesses,  made  a  solemn  state- 
ment asserting  the  facts  of  the  discovery,  all  of  which  was  taken 
down  in  writing  by  the  clerk.  If  no  one  appeared  as  a  contesting 
claimant  for  the  ground  the  Bergmeister  proceeded  to  measure 
off  a  "Head  Meer,"  beginning  at  the  discovery  point  and  measur- 
ing off  147  feet  along  the  strike  in  each  direction,  and  also  21  feet 
on  each  side  of  it,  marking  the  corners  with  posts  or  monuments 
of  loose  stone.  Formal  possession  of  this  area  was  then  given 
to  the  claimant.  During  the  process  each  step  was  noted  by  the 
Mining  Clerk.  After  this  the  Bergmeister  proceeded  to  lay  off  at 
each  end  of  this  head  meer  a  number  of  unit  meers,  the  first  pair 
of  which  was  assigned  to  the  local  sovereign,  the  second  pair  to  his 
wife,  the  third  to  the  Master  of  the  Horse,  and  succeeding  ones  in 
turn  to  the  royal  Cup  Bearer,  the  Groom  of  the  Bed  Chamber  and 


ANCIENT  GERMAN  MINING  LAWS  19 

finally  a  pair  to  the  Bergmeister  himself.  All  these  were  sub- 
sequently obtainable  on  lease  by  miners,  through  applications 
made  to  the  Bergmeister. 

Later  this  custom  was  modified  by  laying  off  the  vein  on  both 
sides  of  the  Head  Meer  into  two  meer  blocks,  which  were  allotted 
to  miners  in  the  order  of  application,  each  applicant  having  the 
right  to  select  his  block  out  of  any  remaining  unclaimed. 

On  all  of  these  claims — including  the  Head  Meer — a  royalty  of 
10%  of  the  gross  value  of  the  output  was  payable  to  the  govern- 
ment. 

The  width  of  these  claims  on  the  surface  being  only  42  feet,  and 
the  same  being  apportioned"  equally  on  both  sides  of  the  line  of 
strike,  all  but  veins  of  nearly  vertical  dip  would  require  but  little 
exploration  in  depth  to  carry  the  workings  outside  of  their  surface 
lines  projected  vertically  downward.  From  this  condition  arose 
the  first  custom  permitting  extralateral  rights.  This,  Agricola 
says,  was  of  very  ancient  origin,  and  he  describes  its  provisions 
as  follows: 

"If  the  vein  descends  vertically  into  the  earth  the  boundaries  simi- 
larly descend  vertically,  but  if  the  vein  inclines  the  boundaries  likewise 
will  be  inclined.  The  owner  always  holds  the  mining  right  for  the  width 
of  his  meer,  however  far  the  vein  descends  into  the  depths  of  the  earth." 

This  custom,  however,  applied  only  to  that  kind  of  mineral 
deposit  known  technically  in  that  day  as  "vena  profunda," 
which  at  the  present  time  would  be  translated  into  the  term 
' '  true  fissure  vein."  For  the  other  two  kinds  of  deposits  which  he 
called  respectively  " venae  dilatantae"  (bedded  veins)  and  "venae 
cumulatse"  (a  mass,  impregnation,  segregation,  replacements  or 
stockworks)  there  existed  no  extralateral  rights;  and  the  Berg- 
meister in  allotting  ground  gave  to  the  discoverer  as  many  unit 
meers  in  a  compact  block  as  he  thought  proper,  considering  the 
relative  importance  of  the  discovery  made,  and  the  conditions 
under  which  it  was  necessary  for  the  miner  to  operate ;  and  to  all 
others,  in  the  order  of  application,  smaller  sized  blocks. 

To  companies  with  capital,  areas  of  much  larger  size  would  be 


20  INTERNATIONAL  MINING  LAW 

allotted,  at  first  in  the  way  of  blocks  of  meers,  and  later  as  irregu- 
larly shaped  tracts. 

Tunnel  rights  also  were  procurable.  These  recognized  the 
benefits  of  drainage,  ventilation,  and  working  tunnels,  and  com- 
pelled miners  who  enjoyed  the  resulting  advantages  to  contribute 
to  their  cost  or  maintenance  or  both.  New  veins  discovered  in 
such  excavations  entitled  the  tunnel  owner  to  a  liberal  portion 
thereof  up  to  the  surface  and  indefinitely  downward,  and  pro- 
tected his  interests. 

Nominally,  continuous  work,  as  well  as  the  prompt  payment  of 
royalty,  was  required,  and  any  one  who  could  prove  that  labor 
had  ceased  for  three  consecutive  shifts  on  a  lease  had  the  right  to 
denounce  and  claim  it.  But  this  ruling  of  the  sovereign  power 
was  liberally  interpreted  generally,  by  the  Bergmeister,  and 
almost  any  reasonable  explanation  of  default  was  accepted  by 
that  official  in  the  cases  of  industrious  and  capable  miners. 


CHAPTER  IV 

ANCIENT  SPANISH  MINING  LAWS  AND  CUSTOMS 

To  understand  properly  the  system  of  mining  law  prevailing  in 
Latin  America  at  the  present  time,  it  is  necessary  to  have  some 
knowledge  of  the  old  Spanish  laws  relating  to  the  industry,  and 
it  will  be  advantageous  first  to  recapitulate  briefly  the  racial  his- 
tory of  the  people  of  the  Iberian  peninsula,  for  the  laws  that  ulti- 
mately originated  there  were  the  outgrowth  of  the  vicissitudes 
through  which  its  inhabitants  passed  in  their  long  struggle 
toward  a  national  life.  This  part  of  Europe  has  been  notable  for 
its  mineral  wealth  since  the  dawn  of  civilization  there,  which 
perhaps  may  be  said  to  have  begun  not  later  than  1000  B.C.,  the 
date  of  the  founding  of  the  city  of  Gaddir  on  its  southwest  coast, 
now  called  Cadiz,  by  the  Phoenicians.  These  Semitic  people, 
and  their  Carthaginian  successors  of  the  same  race  did  not  invade 
or  conquer  the  country,  but  appear  to  have  held  exclusive  con- 
trol of  its  trade  until  206  B.C.  when  they  were  replaced  by  the 
Romans.  The  latter  gave  way  to  the  Visigoths  in  414  A.D.,  and 
these  in  their  turn  were  dispossessed  by  the  Arabs  (Moors)  in 
711.  This  second  Semitic  sway  continued  uninterruptedly 
until  1031,  when  the  Mohammedan  Ommiad  dynasty  ended. 
The  country  was  then  broken  up  into  a  number  of  small  king- 
doms, some  Christian  and  some  Mohammedan,  and  for  nearly 
200  years  was  ravaged  by  the  continual  wars  between  these  rival 
states.  About  1140  the  kingdom  of  Portugal  achieved  national 
existence  in  nearly  its  present  form,  and  in  1212  the  Christian 
kings  of  Castile,  Navarre,  and  Aragon  secured  such  a  prepon- 
derance of  power  and  population  that  the  Mohammedan  domi- 
nance began  to  pass  away.  Finally,  in  1497,  the  region  now 
known  as  Spain  became  a  united  monarchy  under  Ferdinand  and 
Isabella.  To  summarize,  the  peninsula,  originally  inhabited  by 

21 


22  INTERNATIONAL  MINING  LAW 

people  of  the  Celtic  race  known  to  ethnologists  under  the  gen- 
eral name  of  Celtiberians,  was  under  Semitic  influences  during 
nearly  800  years  (1000  to  206  B.C.),  under  Roman  for  650  years 
(206  B.C.  to  414  A.D.),  under  Germanic  (Visigoths)  for  nearly 
300  years  (414  to  711),  again  under  Semitic  (Arabs  and  Moors)  for 
320  years  (711  to  1031),  and  under  partial  Semitic  and  partial 
native  rule  for  a  further  period  of  466  years  (1031  to  1497). 

There  is  little  doubt  that  in  each  case  the  control  of  the  region 
was  sought  more  for  possession  of  its  mineral  wealth  than  for  any 
other  reason.  The  Phoenicians  and  Carthaginians  do  not  ap- 
pear to  have  penetrated  to  any  extent  into  its  interior,  or  to 
have  exercised  much  if  any  political  dominion  there.  But  they 
established  cities  along  its  coasts,  and  traded  extensively  with  the 
natives,  giving  in  exchange  for  the  gold,  silver,  and  cinnabar,  which 
the  latter  procured  so  easily,  the  various  products  of  far  eastern 
civilization  which  were  highly  prized  in  those  days  by  the  primi- 
tive people  of  western  Europe.  The  Romans,  however,  took 
physical  possession  of  the  land  and  its  inhabitants,  imposed  their 
civilization  upon  it,  worked  its  mines  vigorously  with  slave  labor, 
and  regarded  the  peninsula  as  one  of  the  most  desirable  parts 
of  their  Empire. 

The  Visigoths,  being  of  Germanic  stock,  and  coming  from  a 
part  of  Europe  which  even  at  that  early  date  had  some  little 
reputation  for  mineral  wealth,  must  have  been  attracted  towards 
the  conquest  of  the  country  because  of  its  superior  resources  in 
this  respect,  and  may  have  brought  with  them  some  little  knowl- 
edge and  experience  in  the  industry.  But  the  Roman  civiliza- 
tion they  dispossessed  was  far  in  advance  of  their  own,  and  while 
they  held  the  peninsula  they  appear  to  have  completely  adopted 
Roman  laws  and  practice  in  the  conduct  of  such  mining  opera- 
tions as  they  carried  on,  or  permitted  to  the  inhabitants. 

Nor  did  the  Moors,  when  they  held  the  land,  make  any  changes 
of  importance  in  the  laws  pertaining  to  mining.  No  branch  of 
the  Semitic  race  has  ever  been  notable  in  that  line  of  industry. 
They  appear,  however,  to  have  done  much  indirectly  to  foster 
mining,  principally  by  permitting  much  freedom  of  operation  to 


ANCIENT  SPANISH  MINING  LAWS  23 

those  engaged  in  the  occupation,  and  by  a  vigorous  development 
of  the  great  natural  agricultural  resources  of  the  country,  which 
had  the  effect  of  making  labor  cheap,  abundant,  and  contented. 
During  their  dominance  Iberia  enjoyed  a  prosperity  greater 
than  any  that  preceded  or  has  followed  it,  and  to  their  encour- 
agement of  letters  and  the  gentler  arts  may  be  ascribed  the  fact 
that  we  have,  to-day,  so  complete  a  record  of  the  system  of  min- 
ing jurisprudence  prevailing  during  those  early  days.  Nothing 
equal  to  or  even  approaching  it  has  been  preserved  in  any  other 
part  of  the  world. 

During  the  600  years  when  Spain  was  a  Roman  province,  the 
common  laws  of  that  Empire  took  firm  root  among  its  people, 
and  when  the  Visigoths  took  possession  of  the  peninsula  they 
considered  the  laws  so  satisfactory  and  adequate  that  they  caused 
to  be  promulgated  a  compilation  of  all  then  in  force  in  the  coun- 
try. This  compilation  is  known  as  the  Code  of  Alaric,  and  is 
regarded  by  Spanish  jurists  as  the  foundation  of  their  system  of 
jurisprudence.  It  was  published  towards  the  close  of  the  7th 
century,  say  about  A.D.  675,  shortly  before  the  rule  of  the  Visi- 
goths began  to  give  way  to  that  of  the  Arabs. 

The  Arabs,  or  Moors,  advanced  into  the  Iberian  peninsula  from 
Africa,  and  during  the  300  years  when  they  were  in  complete 
control  of  the  country  mining  flourished  greatly  along  with  agri- 
culture and  other  industries,  and  the  land  became  very  rich  and 
prosperous.  It  is  generally  believed  by  Spanish  writers  that 
towards  the  end  of  this  period  (975-1000  A.D.)  what  is  known  as 
"The  Old  Code  of  Castile"  was  compiled,  consisting  very  largely 
of  decrees  promulgated  from  time  to  time  during  the  preceding 
two  centuries  to  provide  for  the  necessities  of  the  developing 
country,  many  of  which  had  to  do  with  the  business  of  mining. 

After  this,  and  during  the  stormy  period  between  1031  and 
1212,  while  Moorish  power  was  declining  and  the  peninsula  was 
greatly  disturbed  by  civil  wars,  mining  operations  were  much 
impeded,  and  a  great  many  of  the  famous  properties  of  the  day 
were  flooded  and  wrecked.  But  by  1350  conditions  began  to 
mend,  and  new  decrees  affecting  the  industry  became  necessary. 


24  INTERNATIONAL  MINING  LAW 

Some  of  these  are  found  in  the  famous  "Siete  Partidas"  a  com- 
pilation which  was  published  in  1348. 

It  will  answer  our  purpose  now  simply  to  mention  the  names  of 
the  principal  Codes  that,  one  by  one,  succeeded  each  other.  The 
first  is  known  as  the  "  Ordenamiento  de  Alcala"  which  appeared 
also  in  1348  and  is  considered  by  Spanish  jurists  as  a  sort  of 
supplement  to  the  "  Partidas."  This  was  followed  by  the  " Orde- 
namiento Real,"  which  appeared  a  few  years  before  the  discovery 
of  America.  Following  this  was  the  "Leyes  de  Toro"  in  1505, 
and  the  Nueva  Recopilacion,  the  first  edition  of  which  appeared 
in  1537.  Subsequent  editions  of  this  work  bear  the  dates  1581, 
1592,  1598,  1640,  1723,  1745,  1772,  1775,  and  1777,  each  supposed 
to  be  an  improvement  upon  the  one  of  prior  date  by  the  inclusion 
of  the  royal  decrees  issued  meantime,  and  the  deletion  of  those 
repealed.  Finally,  in  1805,  came  the  famous  work  called  the 
"  Novissima  Recopilacion  de  la  Leyes  de  Espana,"  which  is  now 
the  fundamental  code  of  Spanish  law  except  as  to  such  decrees  as 
have  since  then  been  repealed,  amended,  or  otherwise  altered  by 
the  Spanish  Cortes,  or  national  legislature. 

Previous  to  the  appearance  of  this  notable  compilation,  such 
decrees  of  the  various  ruling  dynasties  in  the  Iberian  peninsula 
as  applied  to  the  industry  of  mining  were  scattered  through  the 
various  Codes  without  any  other  system  than  that  of  the  natural 
sequence  of  dates.  But  in  the  "  Novissima"  all  laws  of  this  class 
are  collected  together,  and,  so  far  as  I  have  been  able  to  ascer- 
tain, they  constitute  the  oldest  body  of  such  laws  extant  and  in  a 
form  that  at  the  present  time  would  be  regarded  as  a  Code.  It 
includes  decrees  dated  all  the  way  from  1263  to  1790,  but  only" 
those  up  to  the  date  of  1584  refer  to  the  ancient  laws  which  were 
in  force  in  Spain  when  the  new  world  was  discovered,  and  which 
naturally  were  transported  to  Spain's  colonies  there.  In  1761, 
a  noted  Spanish  jurist  named  Don  Francisco  Xavier  de  Gamboa 
published  a  voluminous  commentary  on  some  of  these  old 
decrees,  which  throws  many  an  interesting  side  light  on  the 
doctrine  of  mining  rights  and  obligations  of  his  day. 

It  is  of  course  out  of  the  question  in  this  work  to  quote  all  these 


ANCIENT  SPANISH  MINING  LAWS  25 

old  decrees,  many  of  which  refer  to  the  mining  of  non-metallif- 
erous minerals,  with  which  we  are  not  concerned;  nor  even  to 
quote  in  full  those  bearing  directly  on  metal  mining,  for  the  legal 
style  of  the  times  in  which  they  were  written  was  very  verbose 
and  redundant,  including  phrases  and  sentences  touching  on 
social,  political,  and  governmental  conditions  long  since  passed 
away,  and  having  no  bearing  on  the  present  inquiry.  Hence, 
what  follows  are  pure  digests  or  abstracts.  Great  care  has  been 
taken  in  preparing  them,  and  the  author  believes  that  what  has 
been  retained  represents  accurately  the  true  intent  of  these 
ancient  laws.  Those  who  wish  to  study  them  in  their  full  form 
are  referred  to  "  Spanish  and  Mexican  Law,"  by  John  A.  Rock- 
well, published  in  1851  by  John  S.  Voorhies  of  New  York;  or  to 
"  Mining  Laws  of  Spain  and  Mexico,"  by  H.  W.  Hallack,  A.  M., 
published  by  O'Meara  &  Painter  of  San  Francisco,  in  1859.  The 
first  mentioned  contains  the  valuable  and  interesting  commentary 
by  Gamboa  on  the  4th  law,  which  is  really  the  only  one  that  has 
to  do  with  the  business  aspects  of  mining. 

LAW  1 

DECREE  OF  KING  ALONZO  XI.     PROMULGATED  IN  THE  YEAR  1383. 

ABSTRACTED 

All  minerals  of  gold,  silver,  lead  and  every  other  metal  whatso- 
ever in  our  realms  belongs  to  us;  therefore  no  one  shall  presume 
to  work  them  without  our  especial  license  and  command;  where- 
fore we  command  that  the  rents  derived  therefrom  be  paid  to  us, 
and  that  no  one  presume  to  intermeddle  with  them,  except  those 
to  whom  former  kings,  our  predecessors,  or  we  ourselves  shall 
have  granted  the  privilege,  or  who  shall  have  acquired  them  by 
immemorial  possession. 

LAW  2 

DECREE  OF  KING  JUAN  I.     PROMULGATED  IN  THE  YEAR  1387 
AT  BIRBISCA.     ABSTRACTED 

Inasmuch  as  we  are  informed  that  these  our  kingdoms  abound 
and  are  rich  in  minerals;  therefore,  as  an  act  of  grace  to  the  inhab- 


26  INTERNATIONAL  MINING  LAW 

t 

itants  of  the  same,  notwithstanding  that  there  has  been  reserved 

by  us  minerals  of  gold,  silver  and  other  similar  metals;  it  is  our 
pleasure  that  henceforth  all  persons  whomsoever  of  these  our 
said  kingdoms,  may  search  for,  examine  and  may  excavate  their 
said  lands  and  estates,  and  remove  from  them  said  minerals  of 
gold,  silver,  quicksilver,  tin  and  other  metals,  and  that  they  may 
search  for  minerals  in  all  other  places  whatsoever,  not  prejudicing 
in  their  searches  and  excavations  the  rights  of  other  persons,  and 
acting  with  the  permission  of  the  owner;  and  all  the  minerals 
which  shall  be  thus  found  and  extracted  shall  be  divided  as 
follows :  First,  there  shall  be  delivered  and  paid  therefrom  to  the 
person  who  extracted  the  mineral,  all  expenses  of  excavating  and 
extracting;  and  of  the  remainder,  the  said  expenses  having  been 
deducted,  the  third  part  shall  belong  to  the  person  extracting  the 
mineral,  and  the  other  two  parts  to  ourselves. 

LAW  3 

DECREE  OF  KING  PHILIP  II  OF  SPAIN  AT  VALLADOLID.     PRO- 
MULGATED JANUARY  10TH,  1559.     ABSTRACTED  AND  PUT 
INTO  MODERN  LEGAL  FORM 

WHEREAS,  it  is  very  well  known  that  great  benefit  to  our  royal 
patrimony  and  to  our  subjects  and  citizens  has,  at  times  in  the 
past,  resulted  from  the  discovery  and  working  of  mines  of  gold, 
silver,  quicksilver  and  other  metals,  in  which  we  are  informed 
these  kingdoms  are  very  rich ;  and : 

WHEREAS,  by  the  law  which  was  promulgated  by  King  Juan  I 
in  1383,  the  right  was  granted  to  all  persons  to  explore  for  and 
work  all  the  minerals  in  this  kingdom,  and: 

WHEREAS,  experience  has  shown  that  very  few  mines  have 
been  or  are  likely  to  be  discovered  and  operated  under  its  pro- 
visions, and: 

WHEREAS,  it  is  said  that  there  are  persons  who  have  knowledge 
of  the  existence  of  rich  mines  but  will  not  make  known  their 
location  because  they  are  in  regions  that  have  been  granted 
to  noblemen,  bishoprics,  archbishoprics  and  provinces,  by 


ANCIENT  SPANISH  MINING  LAWS  27 

which  process  almost  the  whole  public  domain  has  been 
alienated,  and:  • 

WHEREAS,  these  grantees  just  mentioned  were  given  exclusive 
exploring  and  working  privileges,  and  now  display  little  or  no 
inclination  to  exercise  the  same  or  allow  others  to,  so  that  we,  our 
subjects  and  citizens  are  deriving  no  benefits  therefrom,  and: 

WHEREAS,  others  will  not  engage  in  mining  on  these  grants, 
although,  by  the  decree  of  King  Juan  the  division  of  profits  was 
arranged,  yet  the  law  is  so  ancient  and  has  been  so  little  used  that 
men  of  means  hesitate  to  risk  their  money  on  the  strength  of  it; 
besides  which,  many  questions  have  arisen  under  it  which  have 
never  been  judicially  decided: 

Now,  therefore,  to  clear  up  all  these  difficulties,  and  to  make 
the  investment  of  capital  in  mining  an  occupation  as  free  as  pos- 
sible from  legal  hazard  and  other  vexations;  and  having  conferred 
with  the  members  of  our  Council  on  the  subject,  it  has  been 
decided  to  promulgate  the  following  decree. 

First. — We  declare  void  and  resume  in  ourselves  the  titles  to  all 
mines  of  gold,  silver  and  quicksilver  in  this  our  kingdom,  wher- 
ever situated,  whether  in  public  or  private  land,  and  notwith- 
standing the  grants  heretofore  by  our  ancestors  or  ourselves 
made,  to  anybody,  or  for  any  cause,  doing  so  for  the  reason  that 
said  grants  have  been  prejudicial  to  ourselves,  and  to  our  subjects 
and  citizens.  Provided  however,  that  in  such  cases  where  mining 
operations  in  good  faith  are  now  in  progress,  this  decree  shall 
be  without  force  and  effect.  However,  in  all  other  cases  we 
propose  to  indemnify  grantees  for  the  nullification  of  their 
privileges  herein  decreed,  after  due  examination  of  their  title, 
and  to  such  an  extent  as  may  seem  just  and  reasonable  under 
the  circumstances. 

Second. — Inasmuch  as  this  resumption  in  ourselves  of  our  rights 
in  these  metals  and  minerals  is  not  that  we,  or  others  in  our  name, 
may  explore  for,  excavate  and  operate  mines,  but  that  our  sub- 
jects and  native  citizens  may  have  the  opportunity  to  do  so  under 
fair  conditions,  and  in  all  parts  of  our  royal  domain  (paying 
proper  damage  to  owners  when  upon  privately  owned  land),  and 


28  INTERNATIONAL  MINING  LAW 

may  be  relieved  of  all  vexatious  questions  of  title;  and  therefore, 
to  all  our  said  subjects  and  citizens  who  may  hereafter  discover 
and  register  claims  on  mineral  deposits,  in  accordance  with  pro- 
visions hereinafter  to  be  declared,  full,  free  and  exclusive  right  is 
hereby  granted  to  operate  without  obstruction  by  ourselves  or 
any  other  person,  within  the  boundaries  of  the  same,  upon  com- 
pliance with  the  regulations  hereinafter  to  be  declared,  and  so 
long  as  the  royalty  as  heretofore  arranged  is  promptly  paid  into 
our  royal  treasury. 

PROVIDED  however,  that  there  be  excepted  from  the  provisions 
of  this  decree  the  mines  of  Guadalcanal  and  one  league  around 
them,  and  the  mines  which  are  already  discovered  within  the 
limits  of  the  Cazalla,  Aracana  and  Galarocca  districts,  and  a 
quarter  of  a  league  around  each  of  them. 


DIGEST  OF  THE  SPANISH  MINING  LAW  AT  THIS  DATE  (1559) 

Prospecting  free. 

Discovery  of  ore  a  requisite  before  a  valid  location  could  be 
made  or  recorded. 

Record  required  (to  be  made  in  person  before  a  Royal  Notary, 
or  in  the  Court  having  jurisdiction  over  the  region  in  which  the 
claim  was  located)  within  twenty  days  after  making  discovery. 
The  act  of  recording  or  registering  consisted  in  giving  the  name 
of  the  discoverer,  the  date  of  discovery,  a  reasonably  good  descrip- 
tion of  the  situation  of  the  claim,  and  a  sample  of  the  ore  found. 

Size  of  claim  allowable,  about  275  feet  along  the  vein,  by  137 
feet  in  width. 

Within  six  months  from  date  of  record  the  claimant  must  sink  a 
shaft  33  feet  deep  on  the  vein,  after  which  work  must  be  reason- 
ably continuous  in  order  to  maintain  title.  Suspension  of  labor 
for  four  months  continuously  automatically  constitutes  forfei- 
ture of  all  rights. 

Royalty  66%%  of  net  profits. 
Decree  of  March  18th,  1563. 

Promulgates  a  new  scale  of  royalties,  as  follows : 


ANCIENT  SPANISH  MINING  LAWS  29 

For  Silver. 

Per  cent. 

Bars  yielding  up  to  144  ounces  per  ton 

Bars  yielding  from  144  to  432  ounces  per  ton 25 

Bars  yielding  from  432  to  864  ounces  per  ton 

Bars  yielding  over  864  ounces  per  ton 50 

Silver  recovered  from  old  mine  dumps 20 

Silver  recovered  from  old  slag  heaps 5 

For  Gold,  from  any  and  all  sources 50 

For  Copper  (figured  on  weight  of  crude  ingot) 5 

For  Lead  (figured  on  weight  of  crude  ingot) 6% 

For  Antimony  (payable  in  the  ore) 12^ 

Size  of  discovery  claim  placed  at  330  by  165  feet. 

Size  of  ordinary  claim  placed  at  275  by  137^  feet. 

The  actual  discovery  of  ore  not  necessary  as  a  preliminary  to 
the  location  of  a  claim  alongside  of  another  claim  containing  a 
vein  dipping  out  of  it,  but  the  locator  thereof  must  use  all  possible 
diligence  in  sinking  his  exploring  shaft  in  which  he  expects  to  cut 
the  vein,  and  while  doing  so  will  be  protected  in  his  rights. 

The  locator  of  a  vein  which  is  dipping  out  of  his  ground,  having 
followed  it  to  his  side  line  and  beyond  into  unoccupied  territory, 
is  permitted  to  locate  a  new  claim  alongside  of  the  other  to  protect 
the  vein,  by  virtue  of  the  underground  discovery  so  made. 

Location  of  ground  for  another,  by  power  of  attorney,  per- 
mitted. Also  for  a  servant  or  employee,  without  power  of 
attorney. 

In  the  case  of  silver  or  gold  recovered  by  the  use  of  quicksilver, 
the  amalgam  must  be  brought  to  the  Government  refinery,  and 
the  distillation  of  the  quicksilver  effected  in  the  presence  of  an 
official. 

Mines  in  litigation  not  allowed  to  be  kept  inoperative  for  a 
period  greater  than  40  days.  Within  that  time  the  Judge  must 
reach  a  temporary  decision  on  the  basis  of  the  evidence  then 
placed  before  him,  and  m^ist  place  the  winning  party  in  posses- 
sion, allowing  to  the  loser  full  rights  of  appeal,  and  of  the  presenta- 
tion of  further  evidence,  and  imposing  upon  the  temporary  win- 
ner the  obligation  to  keep  accounts,  and  to  retain  all  profits 
intact  until  final  decision  is  reached. 


30  INTERNATIONAL  MINING  LAW 

Size  of  discoverer's  gold  claim  (alluvial  or  quartz),  placed  at 
137%  by  68%  feet,  with  the  obligation  to  locate  one  of  same 
size  for  the  King  alongside  of  his  own,  on  which,  however,  the 
discoverer  had  a  prior  call  for  a  lease. 
Decree  of  August  10th,  1564. 

Repeals  all  former  laws  so  far  as  they  may  be  in  conflict  with 
this  one,  and  promulgates  the  following  changed  schedule  of 
royalties. 

For  Silver. 

Per  cent. 

On  bars  yielding  216  ounces  or  less  per  ton  of  2000  pounds .    10 
On  bars  yielding  over  216  ounces  and  not  over  576  ounces .   20 

On  bars  yielding  576  ounces  and  not  over  864  ounces 25 

On  bars  yielding  864  ounces 50 

Registration  made  obligatory  within  ten  days  of  the  date  of 
discovery. 

Miners  allowed  to  locate  an  unlimited  number  of  claims,  and 
with  no  obligation  to  reserve  any  for  the  King. 

All  discovery  claims  to  measure  440  by  220  feet,  and  all  others 
330  by  165  feet. 

Miners  allowed  free  timber  cutting  rights  on  public  lands,  and 
also  on  private  lands,  but  in  the  latter  case  coupled  with  the 
obligation  to  pay  a  reasonable  price  for  the  timber  taken,  accord- 
ing to  appraisement  by  the  local  Judge.  They  were  also  granted 
all  necessary  rights  of  way  over  private  lands,  and  reasonable 
grazing  privileges  on  the  same. 

Free  fishing  and  hunting  privileges  within  three  leagues  of  the 
mine  or  furnace  granted,  together  with  the  right  to  utilize  the 
water  of  streams  for  power  purposes,  provided  that  when  such 
powers  were  used  at  places  where  the  stream  was  passing  through 
private  lands  the  owners  of  the  same  should  be  fairly  recompensed 
for  the  privilege. 

Owners  of  furnaces  who  were  able  and  desired  to  reduce  therein 
ores  from  other  mines,  as  well  as  their  own,  were  allowed  by  the 
provisions  of  a  special  license  to  do  so  on  condition  that  the  ores 
were  to  be  smelted  separately,  and  that  the  ingots  or  bars  of 


ANCIENT  SPANISH  MINING  LAWS  31 

crude  metal  as  produced  should  be  stamped  with  a  registered 
letter  or  mark,  indicative  of  the  ore  which,  for  the  time,  was 
undergoing  reduction. 

A  further  special  license  was  also  procurable  which  permitted 
the  mixing  of  ores  from  two  or  more  mines,  but  only  upon  condi- 
tion of  allowing  the  government  engineers  and  assayers  full  access 
at  all  times  to  the  works  and  to  the  accounts,  with  the  right  to 
take  samples  whenever  desired  so  as  to  be  able  properly  and  cor- 
rectly to  assess  and  collect  the  amount  of  royalty  due  from  each 
contributor  to  an  operation  of  that  kind. 

A  new  dimension  was  ordered  for  the  gold  claim,  to  wit:  for 
the  discoverer's  claim,  220  by  110  feet;  for  the  ordinary  claim, 
200  by  100  feet. 

Tunnel  rights  for  drainage,  for  cooperative  mining  and  trans- 
portation, and  also  for  purely  exploratory  purposes  were  decreed, 
giving  the  excavators  of  such  enterprises  full  privileges  of  cutting 
through  and  under  all  claims  along  its  line.  The  drivers  of  tun- 
nels acquired  thereby  the  sole  ownership  of  all  ore  encountered 
to  the  extent  of  the  size  of  the  tunnel,  which  could  not  exceed 
66  inches  of  height  and  165  inches  of  width.  But,  when  a  lode 
was  cut,  the  tunnel  owner  had  the  right  to  run  a  drift  upon  it 
as  large  as  the  tunnel,  and  to  continue  driving  upon  it,  and  to 
own  all  the  ore  excavated  during  the  operation,  until  the  owner 
of  the  vein  connected  his  workings  with  it. 

LAW  4 

DECREE  OF  KING  PHILIP  II  OF  SPAIN,  AT  SAN  LOKENZO.     PRO- 
MULGATED AUGUST  22ND,  1584.     ABSTRACTED  AND 
PHRASED  IN  MODERN  STYLE 

Section  1. — Law  3  is  repealed,  excepting  such  parts  of  it  as 
provide  for  the  resumption  in  ourselves  (the  King)  of  all  title  in 
mines  of  gold,  silver,  quicksilver  and  other  metals  and  minerals; 
also  all  other  laws  and  decrees  heretofore  promulgated  that  are 
in  conflict  with  this  law. 

In  Gamboa's  comments  on  this  section  it  is  stated  that  although 


32  INTERNATIONAL  MINING  LAW 

this  law  was  framed  and  promulgated  primarily  to  govern  the 
operations  of  the  mining  industry  of  Spain,  yet  copies  of  it  were 
sent  to  the  Viceroys  of  all  the  provinces  of  New  Spain  in  America, 
with  the  instuction  that  it  be  published  there,  and  put  into  prac- 
tice, wherever  it  did  not  conflict  with  viceregal  decrees  already 
issued  and  approved  by  the  King.  This  was  done,  and  it  will  be 
found  that  its  fundamental  principle,  to  wit,  the  absolute  and 
even  personal  ownership  of  all  metals  and  minerals  by  the  King — 
who  was  afterwards  replaced  by  the  State — has  remained  in  force 
and  effect  in  all  the  modern  laws  of  the  nations  into  which  the 
dominion  of  Spain  was  broken  up  when  these  provinces,  one  by 
one,  attained  independence,  in  the  early  years  of  the  nineteenth 
century. 

The  final  paragraph  of  Gamboa's  comments  on  this  section  is 
worth  quoting  verbatim.  He  says: 

"There  is  no  need  to  have  recourse  to  other  nations  for  mining  ordi- 
nances; our  own  are  amply  sufficient.  In  framing  them  recourse  was 
had  to  the  laws  of  Germany,  as  stated  and  explained  by  Agricola, 
although  the  mines  (claims)  of  that  country  differ  from  ours  in  the 
dimensions  assigned  to  them,  and  in  the  modes  of  handling  them  when 
held  by  partners.  It  cannot  be  denied  that  the  laws  of  the  State  of 
Hesse  are  very  copious,  little  less  so  indeed  than  those  of  the  Palatinate, 
but  almost  every  contingency  is  comprehended  in  and  provided  for  by 


From  these  remarks  it  would  appear  that  although  the  mining 
districts  of  Germany  could  not  compare  in  antiquity  or  richness 
with  those  of  Spain,  yet  in  the  former  rules  and  regulations  to 
govern  the  operations  of  the  industry  had  been  worked  out  in 
detail  before  the  same  process  had  taken  place  in  the  Iberian 
peninsula.  There  is  nothing  to  indicate  that  in  fundamentals 
either  had  borrowed  from  the  other. 

Section  2. — Complete  possessory  and  conveyancing  rights  are 
granted  to  discoverers  of  mines,  so  long  as  the  provisions  for 
reasonably  continuous  working  are  complied  with,  and  the 
royalties  paid.  In  the  case  of  a  discovery  made  upon  alienated 


ANCIENT  SPANISH  MINING  LAWS  33 

land,  security  must  be  given  that  the  surface  owner  will  be  fairly 
indemnified  for  any  damage  that  might  result  from  mining 
operations. 

In  commenting  on  this  section  Gamboa  mentions  the  fact  that 
prospecting  and  claim  location  was  not,  at  first,  free  in  Mexico, 
to  the  natives  nor  even  to  the  Spaniards.  A  permit  of  some  kind 
was  necessary,  and  this  was  obtainable  only  at  the  pleasure  or 
discretion  of  the  local  judge.  Finding  that  the  natives  concealed 
their  knowledge  of  promising  outcroppings,  and  that  the  Span- 
iards would  not  prospect,  the  Government  not  only  authorized 
free  prospecting,  but  offered  large  rewards  for  all  valuable  finds. 
Decree  to  this  effect  was  made  by  Emperor  Charles,  and  dated 
December  9th,  1526. 

Sections  3  to  15.  Royalties/ — Royalties  on  the  precious 
metals  are  receivable  only  in  the  form  of  the  refined  metals  them- 
selves. On  the  base  metals  they  may  be  paid  in  the  condition  of 
the  crude  ingot.  The  business  of  smelting  ores  is  free  and  open 
to  all.  But  the  separation  of  the  precious  from  the  base  is 
reserved  as  a  Government  monopoly,  and  refineries,  properly 
equipped,  are  established  at  all  the  principal  mining  districts.  To 
the  nearest  of  these  the  miner  must  bring  his  bars  of  silver-lead 
or  silver-copper  for  the  separation  of  the  metals,  and  royalties 
will  be  collected  on  the  arriving  weights  of  the  former  according 
to  the  following  schedules. 

For  Silver. — On  bars  yielding  1 Y^  marcs  (or  less)  of  silver  per 
quintal — equivalent  approximately  to  216  ounces  per  ton  of  2000 
pounds — 10%. 

On  bars  yielding  over  1J/2  niarcs  and  not  over  4  marcs — equiva- 
lent approximately  to  from  216  to  576  ounces  per  ton — 20%. 

On  bars  yielding  over  1 J^  marcs  and  not  over  6  marcs — equiva- 
lent approximately  to  from  576  to  864  ounces,  25%. 

On  bars  yielding  over  6  marcs,  50%. 

For  Gold.     From  all  sources,  quartz,  alluvial  or  smelted,  50%. 

For  Copper  and  Lead.     20%,  payable  only  in  the  metal. 

At  the  time  it  was  the  custom  in  Spain  for  the  miner  to  be  his 
own  smelter,  which  was  made  possible  by  the  fact  that  only  the 


34  INTERNATIONAL  MINING  LAW 

very  simplest  kinds  of  ore  were  1  reated,  of  which  there  was  at  one 
time  the  greatest  abundance. 

Other  scales  of  royalty,  less  severe,  were  arranged  by  special 
dispensation  for  those  who  undertook  the  reopening  of  old  and 
long  abandoned  mines;  and  also  in  the  case  of  ore  of  very  low 
grade  in  the  precious  metal. 

By  decree  of  August  18th,  1607,  the  royalty  on  all  mines  pro- 
ducing gold  or  silver,  or  both,  was  reduced  for  a  period  of  ten 
years  to  one-fifteenth,  or  6%%;  and  for  the  next  following  decade 
to  10%,  with  the  proviso  that  at  the  end  of  this  20-year  period 
the  royalty  might  be  again  raised,  but  would  never  thereafter 
exceed  one-fifth,  or  20%. 

Because  of  a  lack  of  knowledge  at  the  time  as  to  how  to  reduce 
antimony  ores  to  the  metallic  state  (which  in  fact  was  not  accom- 
plished until  1740),  the  royalty  on  pure  ores  of  that  metal  was 
accepted  in  the  form  of  ore. 

In  1569  many  foreigners,  mainly  Germans,  were  employed  by 
Spanish  individuals  and  companies  in  conducting  their  mining 
operations,  native  talent  in  that  line  being  very  low.  Also 
mines  were  leased  to  foreigners. 

Section  16. — Prospecting  and  digging  are  free  on  all  lands, 
either  public  or  private,  and  without  permit,  but  any  damage  on 
private  land  made  by  such  work  must  be  paid  for.  No  royalty 
payable  to  surf  ace -owners. 

Section  17. — Registry  required  within  20  days  of  date  on 
discovery  stake,  before  the  Judge  of  the  Court  having  proper 
jurisdiction  in  the  District.  The  claimant  must  produce  a  sam- 
ple of  the  ore  disclosed  by  his  excavations,  must  give  his  name 
and  personal  description  and  date  of  discovery,  and  describe  the 
locality  with  reasonable  exactitude  and  state  details  of  digging 
performed.  Within  60  days  thereafter  he  must  deliver  a  copy  of 
this,  duly  certified  by  the  local  authority,  to  the  chief  govern- 
ment official  of  the  Department,  after  which,  and  during  another 
period  of  90  days,  he  must  sink  a  shaft  on  the  ore  to  the  depth  of 
at  least  33  feet,  approximately.  Having  done  this,  and  having 
determined  by  his  explorations  to  that  date  how  he  desires  to  lay 


ANCIENT  SPANISH  MINING  LAWS  35 

out  his  ground,  he  must  file  a  petition  asking  to  have  his  bounda- 
ries marked  out.  The  Government  then  orders  an  examination 
of  the  premises  by  an  engineer,  who,  if  everything  has  been  done 
by  the  claimant  that  the  laws  require,  places  his  corners  and  puts 
him  formally  in  possession. 

The  discovery  shaft  must  be  66  inches  deep  and  33  inches 
wide,  and  the  discovery  stake  must  be  firmly  set  in  it,  not  along 
side  of  it.  This  discovery  stake  could  not  be  moved  after  once 
being  set. 

The  personal  attendance  of  the  claimant  for  the  registration 
act  was  not  specifically  required,  although  considered  most  advis- 
able. The  act  could  be  performed  by  any  duly  authorized  Agent. 

Apparently  there  was  no  limit  to  the  number  of  claims  that 
an  individual  could  acquire,  except  that  he  could  take  only  two 
adjoining  claims  upon  a  vein,  and  must  then  leave  the  space  of 
three  claims  vacant  before  staking  out  another  two.  But  if  a 
partnership  of  two  or  more  existed,  four  or  more  claims  (accord- 
ing to  the  number  of  partners)  could  be  staked  on  the  same  vein; 
but,  as  before,  a  length  of  the  vein  equal  to  three  claims  must  be 
left  at  each  end  of  such  a  group  location,  before  another  group 
location  could  be  made. 

The  size  of  the  regular  claim  was  165  feet  in  length,  by  87 % 
feet  in  width.  But  the  discoverer  of  a  new  vein  was  allowed  'to 
locate  two  claims  thereon,  contiguous,  each  of  which  might  meas- 
ure 220  feet  in  length  by  87^  feet  in  width. 

A  claimant  must  stake  his  ground  within  10  days  after  erecting 
his  discovery  stake,  but  no  valid  discovery  could  be  made,  or 
stakes  set  up,  until  ore  had  actually  been  found. 

The  discoverer  of  a  new  vein  was  allowed  to  lay  out  his  ground 
either  along  or  across  the  strike  of  the  vein,  as  he  preferred,  and 
all  other  following  locators  were  permitted  to  do  the  same.  All 
claims  to  be  rectangular  in  shape. 

This  provision  was  for  the  purpose  of  allowing  the  miner  to 
secure  more  of  the  underlay  or  dip  of  the  lode  than  of  its  strike, 
if  he  preferred  to  do  so;  also  to  enable  him  to  cover  wide  outcrops 
or  blowouts,  or  segregations  or  stockworks. 


36  INTERNATIONAL  MINING  LAW 

When  the  miner,  following  ore,  either  along  the  strike  or  on 
the  dip  of  his  vein,  or  on  any  line  between  the  two,  passed  his 
boundaries  and. entered  the  claim  of  a  neighbor,  he  had  the  right 
to  continue  working  until  he  connected  with  the  workings  of  the 
neighbor,  and  remove  and  own  all  ore  broken  down  up  to  that 
point.  But  as  soon  as  connection  was  made,  thus  proving  the 
two  veins  to  be  identical,  the  explorer  was  required  to  withdraw 
to  within  his  own  lines.  When  such  a  connection  was  made  on 
the  dip,  the  same  rule  applied,  unless  the  connection  was  made 
outside  of  the  boundaries  of  both  claims  and  in  unoccupied  terri- 
tory, in  which  case  each  miner  could  hold  up  to  the  point  of  con- 
nection or  intersection.  Beyond  that  the  ground  (in  vacant  land) 
belonged  to  the  one  who  first  made  a  claim  for  it. 

The  obligation  to  sink  on  the  vein  to  the  depth  of  33  feet  within 
three  months  after  registration  was  mandatory,  and  no  convey- 
ancing right  whatever  existed  until  that  amount  of  development 
work  was  done. 

Possession  was  maintained  by  keeping  four  laborers  per  day  at 
work.  Failure  to  do  this  during  four  consecutive  months  auto- 
matically worked  forfeiture. 

The  Spanish  verb  "denunciar"  and  its  derivatives  have,  in 
many  English  renderings  of  Spanish  legal  documents,  been  trans- 
lated by  the  use  of  the  English  verb  "to  denounce"  and  its  de- 
rivatives; and  in  common  parlance  among  English  speaking 
mining  men  the  act  of  locating  a  mining  claim  in  a  Spanish 
American  country  is  generally  spoken  and  written  of  as  a  "de- 
nouncement." Some  little  misunderstanding  has  thereby  re- 
sulted. The  two  verbs,  although  derived  from  the  same  Latin 
root,  convey  among  the  two  people  somewhat  different  meanings. 
With  the  Spanish,  "denuncio"  means  "I  advise,  give  notice,  lay 
information  against,"  but  not  necessarily  charging  the  doing  of 
an  illegal  or  wrongful  act.  With  the  English  "I  denounce" 
means  "I  publicly  accuse,  declare  as  deserving  of  punishment," 
the  implication  being  that  a  legal  or  moral  wrong  has  been  com- 
mitted. Bearing  in  mind  this  difference  of  meaning  will  make  it 
easier  to  apply  the  proper  words  in  dealing  with  the  verbiage  of 


ANCIENT  SPANISH  MINING  LAWS  37 

Latin  American  mining  law.  When  a  claim  is  located  in  a  Span- 
ish American  country  on  a  new  discovery,  the  process  of  doing 
so  is  more  correctly  described  in  English  by  the  use  of  the  word 
" locating,"  for,  under  the  circumstances  the  Spanish  American 
miner  never  speaks  of  the  act  as  a  "denuncio,"  or  denouncement. 
But  when  a  claim  has  been  automatically  forfeited  by  neglect  on 
the  part  of  the  owner  to  perform  the  work  required  by  law,  or 
to  pay  the  prescribed  royalties,  it  may  then  be  acquired  by  the 
first  party  who  applies  to  have  it  registered  in  his  name,  and  the 
act  of  so  doing  is  then  properly  spoken  of  as  a  "denouncement," 
for  the  new  claimant,  in  making  his  application,  gives  notice  to 
the  Government  that  the  provisions  of  the  law  have  not  been 
complied  with,  and  that  consequently  the  first  claimant  has 
forfeited  his  right  to  possession. 

DECREE  OF  AUGUST  18TH,  1607 

Promulgates  a  new  scale  of  royalties,  to  apply  on  gold  and 
silver  from  all  sources,  as  follows : 

For  the  next  10  years,  6%%. 
For  the  succeeding  10  years,  10%. 

The  government  reserves  the  right  at  the  end  of  the  20-year 
period  of  advancing  the  rate  to  20%,  but  with  the  promise  that 
no  further  advance  should  ever  be  made. 

Repeals  all  decrees  prohibiting  the  mixing  of  ores  in  smelting, 
and  allows  complete  freedom  in  such  matters.  Abandons  the 
Government  monopoly  in  refining  and  in  the  reduction  of  amal- 
gam, and  authorizes  the  Commissary  of  the  Treasury  to  take  all 
such  matters  up  with  the  individual  producers,  and  make  such 
agreements  with  them  as,  in  his  opinion,  will  give  the  greatest 
possible  encouragement  to  the  industry  of  mining,  and  at  the 
same  time  secure  from  it  the  highest  possible  amount  of  revenue. 

ABSTRACT  OF  THE  SPANISH  MINING  LAW  OF  APRIL  11TH,  1849 

All  substances  with  which  mining  has  to  do  belong  to  the  State, 
and  the  same  cannot  be  excavated  and  taken  away  without  per- 


38  INTERNATIONAL  MINING  LAW 

mission  of  the  government,  and  in  the  manner  prescribed  in  this 
law. 

No  claim  may  be  located  until  a  discovery  of  ore  is  made. 

Claims  whose  location  acts  have  been  approved  are  granted 
for  unlimited  time,  subject  to  the  provisions  of  the  law,  and  cover 
all  mineral  substances  except  quicksilver  and  salt,  which  are 
held  to  be  government  monopolies. 

Prospecting  is  free  to  all,  natives  and  aliens,  and  upon  all 
classes  of  land,  whether  public  or  private,  so  long  as  the  work  is 
limited  to  shallow  trial  pits  not  over  33  inches  in  depth  and  1 1  feet 
square  in  surface  area.  But  even  such  excavations  cannot  be 
made  nearer  than  140  feet  to  a  building,  or  a  piece  of  cultivated 
or  enclosed  land,  or  public  property,  without  the  permission  of 
owners.  If  permission  is  refused  and  the  explorer  is  willing  and 
able  to  give  bonds  for  possible  damages,  he  may  secure  the 
necessary  authority  from  the  Government. 

On  all  claims  located  on  private  lands  the  owner  of  the  same 
has  the  right  to  demand  a  one-tenth  interest  (in  expense  as  well 
as  profits)  if  the  right  is  exercised  within  two  months  after  noti- 
fication of  a  discovery. 

If  the  explorer  desires  to  sink  deeper  than  33  inches  on  private 
land,  he  can  obtain  the  right  to  do  so  by  giving  proper  security 
to  interested  parties.  The  first  applicant  to  explore  in  depth  on 
private  land  can  secure  exclusive  rights  for  a  year  to  do  so  over 
such  an  area  as  may  be  legally  located,  which  area  must  be 
delimited  within  three  months.  If,  at  the  end  of  the  year,  he 
has  worked  with  reasonable  diligence  and  energy  on  this  area,  the 
local  authority,  after  due  examination,  and  in  consultation  with 
his  associates,  will  extend  his  time  as  long  as  reasonably  energetic 
work  is  maintained.  On  such  a  claim  the  surface  owner  has  no 
right  to  demand  any  interest. 

The  unit  mining  claim  is  825  by  550  feet  in  area.  An  individual 
can  locate  only  two  of  these  contiguously  on  the  same  vein,  but 
a  partnership  of  four  or  more  may  locate  three  of  them.  If  an 
entirely  new  vein  is  thus  discovered,  the  discoverer  is  entitled 
to  one  more  full  claim. 


ANCIENT  SPANISH  MINING  LAWS  39 

All  claims  must  be  rectangular  in  shape. 

Fractions  between  claims  of  less  than  two-thirds  normal  area, 
are  to  be  divided  up  proportionately  between  the  adjoining  prop- 
erties, but  when  such  fractions  contain  more  than  two-thirds  of  a 
full  claim,  they  may  be  located  as  a  claim,  if  desired. 

The  possessory  title  to  a  mine  is  maintained  by  keeping  a 
minimum  of  four  men  at  work  during  a  total  of  eight  months  of 
the  year. 

Work  cannot  be  suspended  on  a  mine  without  first  giving  notice 
of  the  intention  to  the  local  authority,  and  allowing  him  time 
sufficient  to  have  it  examined  and  surveyed,  if  deemed  by  him 
advisable. 

On  all  located  claims  work  in  earnest  must  begin  within  six 
months  of  date  of  registration.  Failure  to  do  this,  and  to  prose- 
cute work  as  mentioned  in  the  foregoing  paragraph,  automatically 
results  in  forfeiture  of  title. 

All  claims  must  be  registered  before  the  political  chief  of  the 
district,  and  not  more  than  two  unit  claims  may  be  included  in 
one  registration,  except  in  the  case  of  a  new  discovery,  or  a 
partnership.  The  details  of  the  process  of  registration  are  com- 
plicated and  long  drawn  out,  and  may  become  expensive. 

Placer  claim  areas  cannot  exceed  about  82,500  square  feet,  and 
must  be  marked  out  in  the  form  of  a  rectangle. 

Claimants  are  under  obligations  to  keep  their  monuments  in 
good  condition  and  repair. 

OLD   SPANISH  DECREES  RELATING  TO  THE  MINING  INDUSTRY 
IN  SPANISH  AMERICA 

King  Charles,  December  17th,  1551. — Directs  that  natives  shall 
have  the  same  right  to  discover  and  work  mines  as  is  enjoyed 
by  the  Spaniards  and  the  mestizos. 

King  Philip  II,  May  23rd,  1559. — Indians  allowed  equal  rights 
with  Spaniards  in  prospecting  for,  locating,  and  working  mines. 

King  Philip  II,  May  Sth,  1572. — The  exportation  of  quick- 
silver from  Spain  to  Mexico  and  Peru,  or  from  Mexico  to  Peru, 
or  from  Peru  to  Mexico,  is  prohibited  to  all  private  parties,  as 


40  INTERNATIONAL  MINING  LAW 

the  Spanish  government  reserves  the  quicksilver  industry  as  a 
government  monopoly.  Even  when  the  metal  is  collected  by 
distillation  from  amalgam  it  must  be  turned  over  to  the  local 
mining  official  at  a  price  to  be  determined  by  him. 

King  Philip  III,  November  26th,  1602. — The  mining  laws  and 
practice  current  in  Spain  are  to  be  made  the  laws  of  Spanish 
America  wherever  possible,  and  when  not  inconsistent  with  laws 
already  enacted  there. 

King  Philip  III,  March  29th,  1621.— Clerics  and  religiosos 
not  allowed  to  own  or  work  mining  property. 

King  Philip  IV,  March  28th,  1633.— We  ordain  and  charge 
the  Viceroys,  Presidents  and  Governors,  that  they  exercise 
particular  care  and  diligence  in  ascertaining  if,  in  their  districts, 
there  be  any  mines  of  gold,  silver  or  other  metals,  of  which  the 
Indians  have  or  can  obtain  knowledge,  and  that,  after  due 
inquiry  and  advice,  they  cause  to  appear  before  them  the  Indians 
of  the  most  reliability,  in  order  that  these,  personally,  and  others 
who  may  have  more  skill  and  intelligence,  may  give  information 
about  the  places  and  positions  where  it  has  been  understood 
there  are  mines  which  are  concealed  in  order  that  they  may  not 
be  worked  (although  such  working  really  results  to  their  benefit) , 
because  they  are  naturally  inclined  to  idleness;  and  that  they  be 
assured  in  our  name  that,  for  their  care  and  trouble,  if  successful, 
there  shall  be  granted  to  them,  and  henceforth  there  are  granted 
to  them,  many  rewards  and  exemptions;  and  especially  that 
henceforth  they  shall  not  be  assigned  to  work  in  any  mines,  and 
that  they  and  their  descendants  shall  be  forever  exempt  from 
personal  taxes;  and,  if  they  are  Spaniards  or  mestizos,  they  shall 
receive  gifts  corresponding  to  their  rank. 

King  Charles  III  in  1783. — Preamble  (condensed).  The 
mines  are  the  property  of  my  Royal  Crown,  by  their  nature  and 
origin. 

Without  separating  them  from  my  Royal  patrimony,  I  grant 
them  to  my  subjects  in  property  and  possession,  in  such  manner 
that  they  may  sell,  exchange,  pass  by  will  either  in  the  way  of 
inheritance  or  of  legacy,  or  in  any  other  manner  dispose  of  all 


ANCIENT  SPANISH  MINING  LAWS  41 

their  property  in  them  upon  the  terms  on  which  they  themselves 
possess  it,  and  to  persons  legally  capable  of  acquiring  it. 

Be  it  understood  that  this  grant  is  made  upon  two  conditions : 
First,  that  they  (my  subjects)  shall  pay  to  my  royal  treasury  the 
proportion  of  metal  reserved  thereto;  and  secondly,  that  they 
shall  carry  on  their  operations  in  the  mines  in  accordance  with  the 
provisions  of  these  ordinances;  on  failure  of  which,  at  any  time, 
the  mines  of  persons  so  making  default,  shall  be  considered  as 
forfeited,  and  may  be  granted  to  any  person  who  shall  denounce 
them  accordingly. 

DIGEST  OF  LAW 

The  first  discoverer  of  a  new  vein  in  a  new  district  is  entitled  to 
locate  three  claims  on  the  principal  vein,  and  one  on  each  of  the 
other  veins  subsequently  found  by  them.  But  when  a  new  vein  is 
found  in  an  old  district,  the  discoverer  may  make  only  two  loca- 
tions upon  it. 

Within  10  days  after  discovery  application  must  be  made  to  the 
nearest  mining  Judge  or  District  official,  giving  all  details  of  the 
situation  and  circumstances.  Copies  of  this  notice  must  be  posted 
in  public  places  for  90  days,  during  which  period  the  applicant 
must  sink  a  shaft  30  feet  deep  on  his  vein,  and  offer  it  for  inspec- 
tion to  an  officer  of  the  Court,  who,  on  approving  the  exploration 
as  to  its  sufficiency  as  the  basis  of  a  legal  claim,  shall  survey  the 
area  asked  for,  and  set  the  corner  posts.  If  no  objection  has  been 
filed  within  the  period  of  publicity,  this  officer  shall  place  the 
applicant  in  possession,  and  give  him  a  written  document  evi- 
dencing his  legal  ownership  thereto. 

If  the  vein  discovered  is  on  privately  owned  land,  the  claimant 
must  pay  this  surface  owner  for  such  surface  rights  as  he  may 
need,  the  amount  to  be  settled  by  arbitration. 

The  same  procedure  is  provided  for  all  other  classes  of  mineral 
deposits,  including  alluvial  or  placer  deposits. 

Parties  other  than  original  discoverers  are  allowed  to  locate  any 
number  of  claims  anywhere,  except  that  the  location  of  two  con- 
tiguous claims  on  the  same  vein  is  not  permissible. 


42  INTERNATIONAL  MINING  LAW 

These  regulations  are  to  apply  to  precious  stones,  salt,  coal, 
bitumen  and  all  metals  except  mercury,  which  latter  the  Govern- 
ment reserves  the  right  to  take  over,  paying  proper  compensa- 
tion for  the  same. 

Prospecting  and  mine  ownership  are  free  to  all  Spaniards  and 
legal  citizens  of  Spanish  America,  but  prohibited  to  foreigners 
until  they  become  naturalized. 

The  length  of  the  claim  unit  shall  be  550  feet,  measured  along 
the  course  of  the  vein.  Its  width,  in  the  case  of  a  perpendicular 
vein,  shall  be  225  feet.  If,  however,  the  vein  as  shown  in  the 
preliminary  exploring  shaft  shows  a  dip,  the  angle  of  the  dip  is 
to  be  determined  by  the  examining  government  engineer,  and 
the  width  shall  then  be  increased  according  to  the  following  rule: 

When  the  angle  of  divergence  from  the  perpendicular  is  10°  by  112^  ft. 
When  the  angle  of  divergence  from  the  perpendicular  is  15°  by  125  ft. 
When  the  angle  of  divergence  from  the  perpendicular  is  20°  by  137J£  ft. 
When  the  angle  of  divergence  from  the  perpendicular  is  25°  by  150  ft. 
When  the  angle  of  divergence  from  the  perpendicular  is  30°  by  162^  ft. 
When  the  angle  of  divergence  from  the  perpendicular  is  35°  by  175  ft. 
When  the  angle  of  divergence  from  the  perpendicular  is  40°  by  1873^  ft. 
When  the  angle  of  divergence  from  the  perpendicular  is  45°  by  200  ft. 

The  locator  has  the  right  to  take  any  part  or  all  of  these  widths 
on  the  side  towards  which  his  vein  inclines. 

Miners  are  permitted  to  move  their  corners  and  lines  (but  not 
to  increase  their  areas)  if  it  can  be  done  without  injury  to  neigh- 
bors. But  all  such  changes  must  be  effected  with  the  cognizance 
and  permission  of  the  local  authority. 

The  old  law,  allowing  the  miner  to  follow  his  lode  into  the  terri- 
tory of  another,  until  he  connects  with  the  workings  of  the  latter, 
is  repealed. 

The  Tribunal  of  Miners  is  created,  to  consist  of  Spaniards  or 
their  American  descendants  of  unmixed  blood. 

After  boundary  lines  are  set  the  miner  has  the  exclusive  right 
to  all  veins  within  the  same. 

If  a  miner  fails  to  keep  at  least  four  men  at  work  on  his  prop- 


ANCIENT  SPANISH  MINING  LAWS  43 

erty  during  at  least  eight  months  of  the  year,  forfeiture  of  the 
title  automatically  ensues. 

The  miner  may  not  abandon  his  mine  without  first  giving  notice 
of  his  intent  to  do  so  to  the  local  authority,  and  then  allowing 
sufficient  time  for  the  latter  to  examine,  measure  up  and  survey 
the  workings,  and  publish  the  intention  of  abandonment. 

Royalties,  on  gold  and  silver,  20%. 


CHAPTER  V 
MEXICAN  MINING  DECREES  FROM  1821  TO  1883 

These  will  be  found  interesting  and  of  importance  as  showing 
the  successive  steps  taken  in  the  gradual  process  of  clearing 
away  the  repressive  features  of  the  mining  laws  that  were  in 
force  while  Mexico  was  yet  a  colony  of  Spain,  thus  preparing  the 
ground  for  the  present  very  liberal  regime.  The  period  was  one 
during  which  the  country  was  desperately  in  need  of  metallic 
money.  It  was  imperative  to  foster  and  encourage  the  mining 
industry  in  every  possible  way,  even  to  the  extent  of  allowing 
foreigners  to  become  interested.  In  no  other  country  of  the 
world — except  perhaps  China — has  the  unreasoning  hatred  of 
the  alien  been  so  strong.  The  most  disliked  and  feared  of  all 
was  the  Spaniard.  The  antipathy  to  the  American  was  almost 
as"  great,  especially  tqwards  the  latter  end  of  the  period.  The 
German  was  the  most  favored,  but  the  arrivals  of  that  nationality 
had  no  inclination  towards  mining,  and  rarely  brought  any  capital 
with  them  or  could  command  it.  The  English  were  the  explorers 
and  investors  of  the  day  and  were  eager  for  mining  adventure 
in  any  part  of  the  world.  Much  new  money  came  to  Mexico 
from  Great  Britain  during  this  period  of  its  history,  and  un- 
fortunately almost  all  of  it  was  lost  to  the  investors. 

November  22nd,  1821. — To  encourage  mining,  all  former  duties 
and  taxes  on  the  industry  were  abolished,  and  a  uniform  duty 
of  3%  on  fine  gold  and  silver  substituted. 

Quicksilver  and  explosives  were  relieved  from  all  forms  of 
taxation. 

October  7th,  1823. — The  law  prohibiting  unnaturalized  aliens 
from  acquiring  and  working  mines  was  suspended.  In  its  place 
it  was  provided  that  native  mine  owners  needing  capital  for 

44 


MEXICAN  MINING  DECREES  45 

mining  purposes  were  permitted  to  borrow  from  foreigners,  and 
to  give  such  security  as  might  be  demanded,  even  to  a  mortgage 
on  a  mine,  or  the  shares  of  a  mining  corporation.  But  even 
then  the  alien  could  not  register  or  denounce  a  mine,  nor  buy  its 
shares. 

February  13th,  1824. — The  importation  of  quicksilver  from  any 
source  was  made  free. 

May  20th,  1826.— The  Tribunal  of  Miners  was  abolished. 

May  IQth,  1842. — Aliens  residing  in  the  Republic  were  author- 
ized to  discover,  register,  denounce  and  hold  mining  property, 
and  work  the  same.  Such  aliens  were  relieved  from  military 
duty,  but  must  pay  the  military  poll  tax,  and  must  consent  in 
all  ways  to  live  under  Mexican  law.  If  such  an  alien  absented 
himself  for  two  years  from  the  country,  without  permission  from 
the  government,  or  if  by  death  his  property  descended  to  non- 
resident aliens,  it  could  be  condemned  and  sold.  The  right  to 
own  and  work  mining  property  did  not  include  discoveries  made 
upon  the  Public  Domain.  But  if  such  a  discovery  was  made  by 
an  alien,  he  could  obtain  the  right  to  own  and  operate  by  direct 
arrangement  with  the  Government  in  the  form  of  a  concession, 
under  certain  conditions. 

May  3lst,  1843. — A  reward  of  $25,000  was  offered  to  each  of 
the  four  mining  proprietors  who  produced,  in  one  year,  from 
Mexican  mines,  2000  quintals  (about  100  tons)  of  quicksilver, 
which  the  Government  offered  to  buy  at  the  rate  of  $5  per  quintal. 
All  workers  in  quicksilver  mines  were  relieved  from  military  duty. 

DIGEST  OF  MINING  LAW  PROMULGATED  DECEMBER  15TH,  1883, 

UNDER   THE    PRESIDENCY   OF   MANUAL   GONZALEZ 

Prospecting  is  free  on  all  lands  of  the  Republic,  by  open  excava- 
tions not  over  15  feet  in  depth,  or  by  drilling  to  any  depth.  But 
where  the  explorer  desires  to  conduct  his  operations  on  privately 
owned  land,  the  consent  of  the  owner  must  first  be  obtained.  If 
it  is  refused,  the  explorer  may  secure  from  the  Government  a 
permit,  good  for  30  days,  with  reasonable  extensions  for  as  long 
time  as  he  can  show  the  necessity  for  the  same. 


46  INTERNATIONAL  MINING  LAW 

The  unit  claim  for  a  vein  is  200  meters  long,  and  200  to  300 
meters  wide,  according  to  the  inclination  of  the  vein  as  deter- 
mined by  the  government  expert  who  examines  the  preliminary 
excavations  when  application  is  made  for  permanent  registration. 

The  placer  claim  area  is  20  meters  square. 

The  claim  for  segregated  and  bedded -vein  deposits  is  300  meters 
square. 

The  claim  for  an  iron  ore  deposit  is  1500  meters  square. 

The  discoverer  of  a  new  vein  or  deposit  in  a  new  district  may 
locate  three  contiguous  unit  claims  upon  it,  and  one  upon  each 
of  the  other  veins  discovered  by  him  in  the  same  locality.  But 
when  the  discovery  is  of  a  new  vein  in  an  old  district  he  may 
locate  only  two  claims  upon  it,  which  also  must  be  contiguous. 

In  the  case  of  alluvial  or  bedded  deposits,  the  discoverer  may 
also  take  three  units. 

All  succeeding  locators,  in  both  cases,  are  confined  to  the  loca- 
tion of  one  claim  only,  on  each  vein  discovered. 

Registration  proceedings  before  the  local  Authority  are  allowed 
at  the  convenience  of  the  locator,  and  also  at  his  peril,  for,  under 
similar  conditions,  the  ground  is  awarded  to  the  first  applicant. 

Registration  once  effected,  the  grant  is  for  unlimited  time,  sub- 
ject to  annual  labor  conditions  calling  for  the  employment  of  six 
men  per  day  during  not  less  than  six  months  of  the  year,  con- 
tinuously or  interrupted,  according  to  the  convenience  of  the 
claimant,  and  the  prompt  payment  of  the  government  royalty, 
which  shall  not  exceed  2%  gross. 


CHAPTER  VI 

THE  LATIN-AMERICAN  SYSTEM  OF  MINING  LAW.     DIGESTS  OF 

THE  MINING  LAWS  OF  ARGENTINA,  BOLIVIA,  BRAZIL,  CHILE, 

COLOMBIA,  COSTA  RICA,  CUBA,  ECUADOR,  GUATEMALA, 

HONDURAS,  MEXICO,  NICARAGUA,  PANAMA,  PERU, 

URUGUAY    AND    VENEZUELA.     RESULTS   OF 

THE  SYSTEM.     STATISTICS  OF  METAL 

PRODUCTION  FROM  1851  TO  1916 

THE  LATIN-AMERICAN  SYSTEM 

The  mining  laws  of  this  category  are  those  of  Mexico,  of  the 
six  republics  of  Central  America  (Guatemala,  Honduras,  Nicara- 
gua, San  Salvador,  Costa  Rica  and  Panama),  of  Cuba,  and  of  the 
ten  republics  of  South  America  (Colombia,  Venezuela,  Brazil, 
Paraguay,  Uruguay,  Argentina,  Chile,  Bolivia,  Peru,  and  Ecua- 
dor). These  are  all  based  on  doctrines  of  land  tenure  inherited 
from  Spain  or  Portugal,  which  in  turn  trace  back  their  conceptions 
thereof  to  Roman  law. 

The  Roman  doctrine  seems  to  have  been  about  as  follows : 
That  when  a  new  terrain  was  added  to  the  Empire,  the  prop- 
erty rights  of  those  dwellers  therein  who  submitted  without 
resistance  to  the  new  sovereignty  were  recognized  and  confirmed 
as  to  everything  at  and  on  the  surface,  but  all  beneath  the  sur- 
face— whether  on  occupied  or  unoccupied  land — passed  to  the 
Empire  because  it  had.  not  been  specifically  claimed  or  properly 
utilized  by  the  soil  owner  or  the  conquered  state.  The  warrant 
for  the  latter  doctrine  was  based  upon  the  fact  that  whatever 
mining  had  been  done  in  South-western  and  central  Europe 
before  the  arrival  of  Roman  sway  appears  to  have  been  conducted 
on  areas  or  regions  regarded  as  common  property,  to  which  all 
had  free  access,  and  from  which  anyone  could  take  whatever  he 

47 


48  INTERNATIONAL  MINING  LAW 

could  find,  so  long  as  he  did  not  interfere  with  similar  operations 
by  another.  From  this  generalized  concept  two  theories  de- 
scended upon  Europe  when  the  Empire  broke  up.  One  of  these 
was  that  the  sovereign  power  owned  all  beneath  the  surface  under 
all  circumstances,  but  that  a  surface  occupant  had  a  right  to  claim 
damages  for  any  injury  that  might  be  inflicted  upon  his  particu- 
lar part  of  it  by  mining  operations;  and,  the  other  was  that  the 
surface  occupant  was  the  absolute  owner  of  both  surface  and 
underground,  but  if  he  did  not  utilize  the  latter  and  a  third  party 
wished  to  do  so,  the  exclusive  privilege  of  doing  so  could  be 
claimed. 

The  first  of  these  principles  seems  to  have  prevailed  in  those 
parts  of  the  Empire  where  Roman  dominion  continued  long 
enough  to  impress  its  customs  and  language  permanently  upon 
the  people,  which  was  particularly  the  case  in  those  regions  now 
called  Spain  and  Portugal.  The  second  prevailed  where  Rome 
failed  to  impress  its  customs  and  speech  to  that  extent,  as  in  the 
British  Isles  and  among  the  people  of  Teutonic  and  Slavonic 
speech. 

In  Spain,  which  is  a  very  highly  mineralized  region,  and  where 
mining  has  been  an  industry  of  importance  ever  since  the  Roman 
occupancy,  the  first  doctrine  has  always  been  very  strongly  held. 
This  is  interestingly  shown  by  a  decree  of  Alfonso  XI,  promul- 
gated in  1383,  claiming  personal  and  absolute  property  not  only 
in  the  precious  metals  but  in  all  others,  whether  existing  on 
privately  owned  land,  or  on  what  remained  then  of  the  public 
domain.  It  was  held  with  equal  strength  in  Portugal,  and  was 
therefore  naturally  transplanted  to  the  colonies  of  the  two  people 
in  the  new  world.  Similarly,  the  social  views  then  current  in 
these  two  countries  were  impressed  upon  the  native  populations 
of  the  colonies,  with  which,  in  due  time,  the  Latin  stocks  have 
become  more  or  less  amalgamated. 

We  find  this  principle  then,  slightly  modified  here  and  there, 
and  more  than  anywhere  else  in  Mexico  because  of  its  adjacency 
to  a  nation  of  another  race  and  culture,  at  the  foundation  of  all 
Latin-American  mining  codes.  Because  of  it,  in  these  lands  the 


LATIN-AMERICAN  SYSTEM  OF  MINING  LAW  49 

doctrine  everywhere  holds  good  that  whoever  proposes  to  engage 
in  mining  must  first  go  to  the  government,  and  s.eek  for  a  con- 
cession for  such  areas  as  are  desired.  This  being  considered  the 
only  normal  way  of  initiating  business  of  this  kind,  no  special 
laws  were  for  a  long  time  deemed  necessary  for  the  encourage- 
ment of  discovery.  Such  an  occupation  as  prospecting  was  not 
known  or  else  it  was  regarded  as  a  process  requiring  the  exercise 
of  scientific  ability,  and  the  expenditure  of  considerable  money. 
In  all  these  countries  there  has  never  been,  until  very  recently,  a 
middle  class.  Society  has  been  divided  only  into  the  upper  class, 
who  did  no  manual  labor,  and  the  lower  class,  who  did  nothing 
else.  The  first  would  not  prospect  even  if  the  idea  had  occurred 
to  them,  and  the  second  were  assumed  to  be  too  ignorant  and 
improvident  to  engage  in  such  work.  The  discovery  of  new 
mines  thus  became  merely  a  matter  of  accident,  and  has  remained 
so  ever  since.  Such  mines  as  were  known  and  had  a  past  reputa- 
tion for  productiveness,  but  had  been  abandoned  for  one  reason 
or  another — generally  because  permanent  water  level  had  been 
reached,  and  its  control  was  beyond  the  capacity  of  the  crude 
appliances  of  the  day — lay  neglected  for  generations,  until  for- 
eigners, attracted  by  legends  more  or  less  reliable  as  to  their 
past  history,  succeeded  in  interesting  outside  capital  in  their 
rehabilitation.  The  Latin  American  is  not  himself  a  miner  by 
temperament,  and  is  rarely  willing  to  risk  his  money  in  ventures 
of  this  kind.  But  he  is  always  ready  to  sell.  In  this  way  many 
of  the  famous  mines  of  old  passed  into  the  possession  of  aliens. 

As  this  process  advanced,  and  the  industry  began  to  revive 
somewhat,  the  necessity  arose  for  legislation  of  the  kind  that 
defined  more  clearly  the  relations  of  capitalists  and  corporations 
to  the  State,  and  accordingly  new  codes  were  enacted  in  most  of 
the  South  and  Central  American  republics.  Abstracts  of  most 
of  these  follow.  In  all  of  them,  except  Argentina,  where  the 
occupation  of  prospecting  is  referred  to  at  all — as  it  generally  is — 
it  is  declared  to  be  free  and  open  to  any  citizen  or  alien.  But  the 
regulations  prescribed  are  of  such  a  nature  that  few  if  any  of  the 
class  that  would  do  prospecting  work  can  comply  with  them,  or 


50  INTERNATIONAL  MINING  LAW 

would  do  so  if  they  could.  Thus  in  Argentina,  for  example,  whose 
code  in  this  respect,  however,  is  not  quite  typical,  application  for 
prospecting  rights  must  be  made  in  writing,  the  applicant  must 
state  the  area  he  desires  to  search  over,  and  the  metal  or  metals 
he  hopes  to  find.  The  region  asked  for  cannot  exceed  1250 
acres,  and  the  time  granted  for  the  search  must  not  be  over  300 
days.  If  the  permit  is  granted,  and  the  location  proves  to  be 
upon  land  already  alienated,  and  the  owner  objects  to  the  explora- 
tion, the  applicant  must  go  before  a  Court  of  record  and  submit 
his  request  to  a  public  hearing.  If  this  results  in  his  favor  the 
area  must  be  advertised  for  a  stated  period,  and  a  bond  given  to 
protect  the  surface  owner  from  any  damage  that  might  result 
from  the  excavations  about  to  be  made.  In  Bolivia,  in  addition, 
the  Court  sends  an  expert — at  the  expense  of  the  applicant — to 
look  over  the  ground,  and  decide  whether  it  is  worth  prospecting, 
after  which  it  is  still  wholly  within  the  power  of  the  authorities  to 
refuse  the  permit.  But  if  it  is  granted,  only  30  days  are  allowed 
for  the  search.  In  Peru,  after  obtaining  the  permit,  a  shaft  30 
feet  deep  must  be  sunk,  and  submitted  to  the  inspection  of  an 
official  of  the  Mines  Department,  who  has  the  arbitrary  power  to 
refuse  further  permission  to  operate  if,  in  his  opinion,  the  chances 
of  developing  a  paying  mine  are  poor.  Naturally  little  pros- 
pecting (as  we  understand  the  occupation)  will  be  undertaken 
under  such  conditions,  and  when  laws  are  so  framed  it  is  clear 
either  that  it  was  not  intended  to  provide  for  that  line  of  activity, 
or  that  no  proper  conception  of  the  necessity  of  such  preliminary 
exploratory  work  existed  in  the  minds  of  the  legislatures  who 
enacted  them. 

In  Mexico  and  Chile,  however,  all  such  restrictions  are 
removed,  and  yet  the  business  of  prospecting  is  unknown.  Why 
this  is  so  will  perhaps  be  made  clear  in  the  chapter  on  that 
subject. 

Throughout  Latin  America  the  principle  holds  firm  that  no 
fee  simple  title  is  obtainable  for  mineral  land.  Possessory  rights, 
subject  to  an  annual  tax  is  the  only  form  of  title  given.  This 
annual  tax  is  generally  quite  reasonable,  and  often  is  payable  in 


LATIN-AMERICAN  SYSTEM  OF  MINING  LAW  51 

two  or  more  installments,  but  it  cannot  be  paid  in  labor,  which 
is  the  only  kind  of  currency  the  working  class  possesses.  Hence, 
even  in  Mexico,  very  few  laboring  men  become  mine  owners. 

No  extralateral  rights  are  allowed  anywhere  under  the  Latin 
systems,  but  a  most  interesting  attempt  to  convey  such  privileges 
to  a  limited  extent  has  been  inherited  from  the  old  Spanish  laws, 
and  has  been  incorporated  in  the  Peruvian  law.  Details  of  this 
are  given  in  the  chapter  on  " Extralateral  Rights." 

In  all  respects  the  laws  of  these  countries  are  apparently  favor- 
able to  company  operations.  Concessions  are  liberally  granted, 
and  as  long  as  the  very  reasonable  annual  taxes  are  paid,  and  no 
revolutions  occur,  holders  of  such  rights  are  assured  of  great 
security.  The  general  laws  and  the  church  keep  labor  well  in 
control,  and  experience  has  shown  that  the  working  people  of 
these  countries,  when  fairly  treated,  are  faithful  and  can  be 
trained  to  a  moderate  degree  of  efficiency.  They  make  excellent 
miners,  and  quite  a  proportion  become  capable  of  handling  ma- 
chinery under  ordinary  circumstances.  But  universally  they 
fail  in  emergencies,  when  initiative  is  demanded.  This  is  un- 
doubtedly due,  not  to  any  lack  of  intelligence  or  courage,  but 
to  a  lack  of  education.  So  long  as  a  people  do  not  know  the 
causes  of  the  simple  phenomena  of  every  day  life,  and  are  taught 
that  they  must  look  to  others  for  explanations  of  such  matters, 
so  long  will  they  remain  incapable  of  giving  anything  more  effi- 
cient than  faithful  routine  service  in  return  for  wages. 

In  Mexico,  where  the  Latin  system  has  attained  its  highest 
development,  the  mining  laws,  so  far  as  they  touch  the  relations 
between  the  State  and  mining  corporations  or  individual  mining 
operators,  are  exceedingly  satisfactory.  Mining  engineers, 
'company  managers  and  agents  universally  approve  them.  The 
proportion  of  gross  output  claimed  by  the  State  in  the  form  of 
taxes  or  royalties  or  both  is  not  unreasonable.  The  protection 
granted  in  return  is  ample  so  long  as  the  authorities  retain  control 
of  the  population.  Few  regulatory  systems  work  as  well  when 
they  work  at  all.  But  in  all  lands  so  conducted,  on  the  basis  of 
a  large  submerged,  uneducated,  and  supposedly  inferior  working 


52  INTERNATIONAL  MINING  LAW 

class,  with  no  middle  class  into  which  they  may  hope  to  elevate 
themselves,  and  through  it  voice  their  aspirations  to  the  upper 
and  governing  class,  rebellion  and  anarchy  sooner  or  later  come, 
destroying  the  improvements  and  wiping  out  the  profits  of  the 
years  of  quietude.  To  the  Anglo-Saxon,  operating  for  himself 
or  others  in  such  lands,  the  problem  is  to  keep  looking  ahead  for 
the  time  of  the  inevitable  storm,  and  well  before  its  arrival  to 
clean  up  if  possible  and  get  away ;  to  do  the  latter,  anyway. 

It  would  be  taking  a  backward  step  to  look  to  such  lands  for 
ideas  in  law  that  might  be  advantageously  applied  to  modern 
industrial  conditions  in  forward-looking  nations.  The  concep- 
tions of  human  rights  current  there  are  those  of  regimes  that  have 
already  had  their  day. 

ARGENTINA 

(Law  of  November  25th,  1886,  with  amendments  to  date  of  January  1st, 

1917) 

For  the  purposes  of  the  law  mines  are  divided  into  three  classes, 
as  follows: 

Class  1. — Those  which  exist  under  the  surface  soil,  in  rock  in 
place,  to  wit:  ores  of  the  metals,  combustibles,  and  precious 
stones  in  veins.  These  are  open  for  appropriation  under  the 
law. 

Class  2. — Those  which  occur  on  or  in  the  surface  soil,  or,  if 
extending  below  it  into  the  bedrock,  yield  well  known  materials 
of  common  use.  Included  in  this  category  are  metalliferous 
alluvial  deposits,  abandoned  mine  and  furnace  dumps,  and  tail- 
ings from  mills,  borax,  saltpeter,  marl,  peat,  pyritiferous  and 
aluminous  earth,  magnesite,  fuller's  earth,  emery,  ochre,  fossil 
gums,  soapstone  and  whetstone,  phosphates,  sulphur,  barite, 
fluorspar,  copperas,  graphite,  potters  clay,  and  salines.  These, 
when  found  upon  the  public  domain,  may  also  be  appropriated 
under  the  law.  When  occurring  on  alienated  land  they  belong 
preferentially  to  the  owners  thereof,  but  are  open  to  appropria- 
tion by  others  with  his  consent,  which  under  certain  circum- 


LATIN-AMERICAN  SYSTEM  OF  MINING  LAW  53 

stances  may  be  forced,  under  the  theory  of  eminent  domain,  if 
considered  for  the  public  good. 

Class  3. — Building  stone,  brick  clay,  sand,  cement  rock  and 
similar  materials.  The  land  upon  which  these  substances  are 
found  may  be  purchased  from  the  government  in  the  ordinary 
way  if  still  unoccupied,  but  when  upon  alienated  land  belong 
exclusively  to  the  surface  owner,  and  cannot  be  appropriated 
without  his  consent. 

As  to  other  substances  not  above  mentioned,  either  omitted 
accidentally  or  because  they  have  become  known  or  desirable 
only  recently,  the  rule  for  classification  will  be  based  upon  their 
nature  and  importance.  The  same  rule  will  apply  to  the  sub- 
stance classified,  which  sometimes,  by  reason  of  the  discovery  of 
new  uses,  should  be  transferred  from  one  class  to  another. 

Mines  that  are  open  for  appropriation  are  held  to  be  the  prop- 
erty of  the  Nation,  whether  situated  upon  public  or  upon  private 
land. 

The  right  of  searching  for,  owning,  using,  and  selling  such 
deposits  is  conceded  to  all  individuals  who  can  legally  own  prop- 
erty of  any  kind,  but  only  in  accordance  with  the  provisions  of 
the  law.  The  Nation  is  not  empowered  to  work  or  sell  mining 
property,  but  it  can  grant  the  provisional  possession  and  usage 
of  such  real  estate  so  long  as  the  conditions  for  tenancy  and  opera- 
tion are  complied  with.  Mines  constitute  a  class  of  property 
distinct  from  the  surface,  and  may  be  transferred  from  one  holder 
to  another  by  substantially  the  same  procedures  as  in  the  case  of 
ordinary  real  estate. 

Prospecting  is  not  free.  A  permit  is  required,  both  from  the 
government,  and  from  the  soil  owner  when  it  is  desired  to  explore 
on  alienated  land.  But  in  neither  case  does  the  permit  cost  any- 
thing. To  secure  exclusive  exploring  rights  on  a  selected  area  a 
written  application  must  be  made  to  the  local  authorities  giving 
a  description  of  the  tract  desired,  the  metal  or  mineral  to  be 
sought,  and  the  name  and  address  of  the  surface  owner  if  the 
tract  is  not  on  the  public  domain.  After  public  advertisement 
of  the  application,  and  other  formalities  that  may  take  30 


54  INTERNATIONAL  MINING  LAW 

days  or  more  for  their  execution,  the  permit  may  be  granted. 
It  may  also  be  denied  if  the  surface  owner  can  show  good  cause 
for  refusal.  If  granted,  the  area  so  securable  is  500  hectares 
(about  1250  acres)  for  one  individual  and  1000  hectares  for  two 
or  more  if  the  land  is  cultivated  or  fenced,  or  2000  hectares  if  on 
the  public  domain.  The  tract  must  be  a  solid  body,  and  in  as 
compact  and  regular  a  form  as  possible.  The  term  cannot  exceed 
300  days.  Active  work  must  begin  within  30  days,  and  must  be 
continuous  thereafter.  If  within  the  term  the  prospector  makes 
a  discovery  and  desires  to  inaugurate  serious  development  work, 
he  may  locate  three  claims,  contiguous  or  separate,  and  within 
five  months  thereafter  must  apply  for  the  formal  grant  of  the 
same.  Meantime  he  cannot  turn  into  money  in  any  way  any 
substances  found,  but  must  store  them  upon  the  premises  until 
the  grant  issues.  Also,  before  the  latter  will  be  issued  to  him 
he  must  pay  the  surface  owner  (if  any)  for  all  damage  that  may 
have  resulted  from  his  prospecting  operations,  and  may  be  re- 
quired to  give  security  for  what  may  be  done  in  the  future. 

The  unit  lode  mining  claim  is  a  parallelogram  measuring  300 
meters  in  length,  which  dimension  must  be  laid  off  along  the 
apparent  strike  of  the  ore  body.  When  the  latter  dips  vertically 
or  nearly  so  into  the  earth,  the  width  allowed  is  200  meters. 
When  the  dip  is  greater  than  45  degrees  from  the  vertical  and 
not  over  50  degrees,  the  width  can  be  245  meters.  Between  50 
and  70  degrees  a  width  of  250  meters  can  be  taken.  From  70 
to  75  degrees,  275  meters.  If  over  75  degrees,  300  meters.  The 
discovery  point  may  be  anywhere  within  the  boundaries.  For 
an  ordinary  alluvial  claim,  100,000  square  meters  (about  21 
acres).  For  dumps,  slag  heaps  and  tailings,  70,000  square  meters 
(about  15  acres).  For  rock  salt  and  peat,  20  hectares  (about 
50  acres).  For  pyritous,  aluminous  or  Fuller's  earth,  copperas, 
magnesite,  emery,  ochres,  ferruginous  clays,  fossil  gums,  soap- 
stone  and  whetstone,  phosphates,  chalk,  sulphur,  baryta,  fluor- 
spar, graphite,  kaolin,  soda  and  potash  salts,  70,000  square 
meters. 

For  iron  mines,  two  unit  lode  mining  claims,  or  120,000  square 


LATIN-AMERICAN  SYSTEM  OF  MINING  LAW  55 

meters  (about  25  acres),  but  if  grouped,  up  to  240,000  square 
meters  (about  50  acres)  may  be  taken. 

For  coal,  oil,  gas,  asphalt  and  other  combustibles,  three  unit 
lode  claims,  or  180,000  square  meters  (about  40  acres),  but  when 
grouped,  up  to  540,000  square  meters  (about  120  acres)  are 
allowed. 

The  discovery  of  ore  is  not  necessary  in  the  case  of  a  lode  claim 
located  upon  the  dip  of  a  vein,  where  the  outcrop  is  already 
located. 

In  the  case  of  all  mining  claims  located  on  alienated  land,  no 
surface  rights  exist.  The  claimant  must  arrange  with  the  soil 
owner  for  what  surface  he  needs.  But  the  claimant  has  the 
right  to  demand  the  sale  or  lease  of  the  surface  to  the  extent  of 
one  unit  lode  claim,  and  on  equitable  terms. 

All  claims  of  all  kinds  must  be  registered  within  30  days  after 
the  grant  allowing  them  has  been  issued. 

Metalliferous  alluvials  and  gravels  containing  precious  stones 
or  any  other  desirable  mineral  (like  monazite,  for  instance), 
abandoned  mine  dumps,  slag  piles  and  tailing  beds,  when  on 
alienated  land,  cannot  be  located;  but  when  existing  on  the  public 
domain  may  be  worked  by  anyone  without  permit  or  the  necessity 
of  filing  claims,  so  long  as  the  operations  are  of  a  primitive  char- 
acter, and  do  not  involve  the  installation  of  machinery. 

The  procedure  for  acquiring  title  to  mining  claims  is  substan- 
tially the  same  for  all  kinds  of  claims,  and  may  be  summarized 
as  follows : 

The  ground  is  first  staked  provisionally,  a  post  being  erected 
at  each  corner  and  at  the  discovery  point.  Within  100  days 
thereafter  the  discoverer  or  his  legal  representative  must  present 
himself  at  the  office  of  the  nearest  chief  local  authority  and  fill 
out  a  written  application  in  duplicate  for  the  ground.  This  docu- 
ment must  contain  a  very  clear  statement  as  to  the  situation  of 
the  claim,  its  area,  the  name  and  legal  residence  of  the  owner  of 
the  land  on  which  it  lies  (if  it  is  not  on  the  public  domain),  the 
names  of  neighboring  mines  and  their  owners,  and,  of  course,  his 
own  name  and  those  of  his  partners  if  he  has  any.  A  sample  of 

5 


56  INTERNATIONAL  MINING  LAW 

the  mineral  found  must  accompany  the  application.  When  it  is 
finally  signed,  one  of  the  copies  is  then  returned  to  the  claimant 
with  the  endorsement  on  it  of  the  date  upon  which  it  was  pre- 
sented; while  the  other,  also  similarly  dated,  is  forwarded  to  the 
Chief  of  the  Department  of  Mines  in  the  capital  of  the  State  in 
which  the  claim  is  situated.  There,  after  examination,  the  docu- 
ment is  approved,  or  denied  for  cause,  or  returned  for  further 
information  or  possibly  for  some  correction.  If  approved  and 
when  finally  in  order,  it  is  advertised  for  15  days  in  the  local 
paper  if  any  exists;  if  not,  then  by  posting  on  the  door  of  the 
chief  local  Authority,  and  by  handbills,  for  the  same  term.  If 
no  ad  verses  are  filed  during  the  period,  the  claim  is  registered. 

Within  100  days  after  registration  the  claimant  must  do  enough 
work  upon  his  vein  or  deposit  to  disclose  its  general  direction 
along  the  surface  and  its  dip  to  the  depth  of  at  least  10  meters. 
If  this  term  is  not  long  enough  it  will  be  extended.  Twenty 
days  after  the  expiration  of  the  term  or  its  extension  the  claimant 
must  apply  for  the  official  survey,  and  deposit  the  cost  of  the 
same.  Within  20  days  after  its  completion  the  claimant  must 
erect  substantial  monuments  of  stone  at  all  corners  as  given  by 
the  government  engineer. 

Upon  a  vein  already  known  only  one  claim  may  be  located  by 
an  individual.  But  the  discoverer  of  a  new  vein  is  allowed  to 
locate  two  claims  upon  it,  and  if  he  is  acting  for  a  company  or 
has  a  partner,  he  may  take  three,  contiguous  or  separate.  Such 
a  "new"  vein  however  must  be  situated  not  less  than  five  kilo- 
meters from  the  nearest  registered  mining  property. 

Upon  all  registered  claims  not  less  than  230  shifts  of  labor 
must  be  performed  annually.  Anyone  who  can  prove  that  such 
an  amount  of  work  has  not  been  done  acquires  the  legal  right  to 
"denounce"  and  become  the  owner  of  the  claim. 

Mining  claims  have  no  extralateral  rights.  But  if  a  miner  has 
pursued  his  vein  to  his  side  line  and  it  is  carrying  ore  at  that 
place,  he  may  locate  the  adjoining  ground  by  virtue  of  the  dis- 
covery so  made,  if  it  is  open  for  location.  Or,  if  it  is  occupied 
already  by  another  he  is  at  liberty  to  follow  his  vein  into  the 


LATIN-AMERICAN  SYSTEM  OF  MINING  LAW  57 

adjoining  claim  and  extract  ore  from  it  until  a  connection  is 
made  with  the  workings  of  the  neighbor.  But  before  so  tres- 
passing he  is  under  legal  obligations  to  advise  the  neighbor  of 
the  intention,  and  as  soon  as  connection  is  made,  either  by  him- 
self or  the  .neighbor,  he  must  cease  work  and  retire  within  his  own 
lines.  All  ore  taken  out  during  the  period  of  trespass  must  be 
disposed  of  separately,  and  the  proceeds,  after  the  costs  of  pro- 
duction and  treatment  are  deducted,  are  divided  equally  between 
the  adjoining  owners. 

A  mining  claim  once  allowed  and  registered  conveys  all  the 
minerals  within  its  lines  except  those  of  the  third  class.  These, 
if  produced,  must  be  turned  over  to  the  surface  owner  (if  any) 
who  must  pay  for  the  cost  of  production. 

Surface  owners  may  work  any  mineral  deposit  discovered  on 
their  premises  by  themselves  or  their  servants  or  employees, 
without  any  authority  from  the  government,  and  without  locat- 
ing any  claims.  But,  if  they  do  so,  they  lose  all  rights  against 
other  discoverers  and  locators. 

Discoverers  of  valuable  deposits  of  substances  of  the  second 
class  on  alienated  land  may  locate  claims  thereon,  but  cannot 
demand  surface  rights  from  owners  thereof.  If  the  latter  insist 
on  taking  possession  of  such  claims — as  they  have  the  right  to 
do — the  discoverer  must  be  properly  indemnified  for  his  time  and 
outlay. 

Surface  owners  cannot  demand  or  collect  indemnification  for 
unoccupied  land  upon  which  waste  from  mine  operations,  slag 
from  furnace  operations,  or  tailings  from  mill  operations  are 
deposited  by  present  day  operators. 

Mining  claims  of  all  kinds  are  accorded  the  legal  standing  of 
landed  property  (real  estate) ,  and  may  be  transferred  in  the  same 
ways.  If  the  transfer  occurs  before  registration,  the  convey- 
ance must  be  of  a  public  nature,  and  be  advertised  in  a  news- 
paper, or  by  posting,  or  by  handbills.  But  after  registration 
the  transaction  is  of  a  private  nature,  and  calls  only  for  the 
recording  of  the  deed  of  conveyance. 

Exclusive  rights  for  dredging  and  hydraulic  operations  are 


58  INTERNATIONAL  MINING  LAW 

obtainable,  and  groups  of  alluvial  areas  may  be  consolidated  for 
such  purposes.  But  before  initiation  work  2%  of  the  capital 
raised  must  be  deposited  in  the  National  Bank  of  the  Republic 
as  a  guarantee  that  adequate  machinery  will  be  provided.  This 
is  returnable  as  soon  as  operation  begins,  which  must  occur  within 
300  days  of  authorization. 

BOLIVIA 

(Law  of  November  28th,  1906,  with  amendments  to  January  1st,   1917) 

All  deposits  of  the  metals  and  precious  stones,  also  of  borates, 
nitrates,  iodine,  sulphur,  coal,  mineral  oil  and  gas,  peat,  asphalt, 
fossil  gums,  alum,  and  other  substances  of  industrial  use,  are  the 
exclusive  property  of  the  State,  whether  existing  upon  the  public 
domain  or  on  privately  owned  property.  Limestone,  sand, 
gypsum,  building  stone,  and  clay  when  existing  upon  alienated 
land  are  the  property  of  its  owner.  If  on  public  land  such  sub- 
stances may  be  made  use  of  by  anyone,  without  government 
permit  or  liability  for  taxation. 

The  distinction,  from  a  legal  point  of  view,  between  surface  and 
underground  realty  is  strongly  emphasized  in  this  law.  The 
former  is  defined  as  the  surface  proper,  together  with  such  a 
thickness  or  depth  of  soil  or  other  material  underneath  it  as  may 
be  necessary  for  all  kinds  of  activities  except  that  of  mining. 
What  is  below  this  varying  boundary  or  frontier  is  the  under- 
ground. The  title  to  this  must  forever  remain  in  the  name  of  the 
State,  but  the  use  of  it  for  mining  purposes  can  become  the  sub- 
ject of  a  grant,  subject  to  the  prescriptions  of  the  mining  law. 
When  the  surface  as  above  defined  contains  any  mineral  substance 
of  use  or  value — excepting  the  few  just  listed  above — mining 
grants  may  also  be  issued  by  the  State  for  the  recovery  of  the 
same,  even  though  the  area  has  been  alienated,  unless  covered 
with  buildings,  orchards,  enclosed  gardens  or  public  parks. 
Other  fenced  areas  in  crops  are  also  exempted  unless  the  permis- 
sion of  the  owner  is  obtained.  But  when  it  is  refused  the  govern- 
ment reserves  the  right  to  permit  mining  operations  upon  or 


LATIN-AMERICAN  SYSTEM  OF  MINING  LAW  59 

under  them  when  proper  cause  is  shown  for  doing  so,  and  when 
adequate  security  is  given  for  damages  that  may  result.  Further, 
in  such  cases,  expropriation  may  be  insisted  upon  if  it  appears 
advisable  and  for  the  public  welfare. 

Prospecting  is  free  to  all,  but  the  prospector  is  under  obliga- 
tions to  give  notice  of  his  intentions  to  explore  where  the  locality 
to  be  searched  is  on  alienated  land,  and  on  such  tracts  his  opera- 
tions must  be  limited  to  excavations  not  over  10  meters  in  length 
or  depth.  When  prospecting  under  a  special  permit  on  culti- 
vated land  the  operations  must  be  concluded  within  a  term  of 
30  days,  which  cannot  be  extended. 

The  unit  mining  area  is  the  hectare,  a  square  of  100  meters 
on  each  side.  Any  number  of  these,  when  grouped  as  a  solid 
block,  may  be  applied  for  as  a  mining  location  or  claim  in  a  well- 
known  mining  district,  but  in  a  newly  discovered  district  the 
limit  is  30  hectares.  Distinct  discovery  of  mineral  values  of  some 
kind  is  a  necessary  prerequisite  to  the  initiation  of  a  mining  title. 
One  having  been  made,  the  discoverer  at  once  makes  applica- 
tion for  it  in  writing,  either  in  person  or  by  attorney,  before  the 
Prefect  of  the  Department  in  which  it  is  situated.  This  formal 
petition  must  be  made  in  duplicate,  on  stamped  paper  purchas- 
able from  the  Prefect,  must  give  all  information  ordinarily 
called  for  in  such  a  document  and  must  be  accompanied  with  a 
representative  sample  of  the  mineral  found  and  a  deposit  of  cash 
sufficient  to  cover  the  costs  of  the  application,  which  are  reason- 
able in  all  details.  Priority  of  application  is  considered  prima 
facie  evidence  of  priority  of  discovery  unless  fraud  can  be  shown. 

Upon  receipt  of  the  application  it  is  dated  and  signed  by  the 
Prefect  and  all  interested  parties,  the  duplicate  handed  to  the 
claimant  and  the  original  forwarded  within  three  days  to  the 
editor  of  the  official  government  Bulletin  at  the  capital  for  publi- 
cation during  a  term  of  70  days.  Also  in  a  local  paper — if  any— 
to  the  extent  of  at  least  three  insertions  at  intervals  of  not  over 
10  days.  During  this  publication  period  all  objections  to  the 
issue  of  the  grant  must  be  formally  filed  with  the  Prefect.  If 
none  appear  the  claim  is  officially  surveyed,  monumented,  and 


60  INTERNATIONAL  MINING  LAW 

registered,  and  the  claimant  after  paying  the  first  year's  taxes 
and  all  unsettled  charges  is  put  into  physical  possession. 

Tunnel  claims  for  drainage,  discovery,  ventilation  or  trans- 
portation may  be  secured  by  the  same  procedure,  but  in  this  case 
no  discovery  is  required.  If  the  proposed  tunnel  is  intended  to 
cross  under  and  through  any  existing  grants  the  permission  of 
the  owners  thereof  must  be  secured  in  writing,  and  a  copy  of  an 
agreement  with  them  relating  to  the  disposition  of  any  ore 
encountered  during  the  traverse  of  their  ground  be  deposited 
with  the  authorities. 

Concessions  for  operating  metalliferous  alluvial  deposits, 
abandoned  dumps  and  slag  piles,  or  any  valuable  mineral  occur- 
rence on  or  in  the  surface  soil,  are  granted  under  the  same  general 
conditions  and  with  the  same  general  procedure  as  for  under- 
surface  properties. 

A  mining  concession  once  allowed  is  of  the  nature  of  a  lease  in 
perpetuity,  dependent  for  its  maintenance  only  upon  the  pay- 
ment of  the  annual  tax,  and  the  reasonable  observance  of  such 
regulations  as  the  law  prescribes  for  the  protection  of  the  life 
and  limb  of  employees,  and  to  secure  proper  sanitary  conditions. 
The  government  exercises  no  surveillance  of  any  kind  over  the 
technical  operations  at  the  mine,  but  holds  the  operator  legally 
responsible  for  the  annual  tax  until  he  formally  gives  notice  of 
his  intention  to  abandon'. 

The  annual  tax  on  under-surface  metalliferous  mines  is  four 
bolivianos  per  hectare  of  surface  in  the  property ;  on  metalliferous 
placers  two  bolivianos  per  hectare ;  on  non-metalliferous  minerals 
like  baryta,  fluorspar,  borax,  etc.,  one  boliviano;  on  combustibles, 
50  centavos  per  hectare,  and  on  abandoned  dumps  and  slag  piles, 
nothing  at  all.  These  several  imposts  are  payable  semi-annually 
in  advance  on  January  1st  and  July  1st.  If  not  paid  within  30 
days  after  these  dates  interest  at  the  rate  of  9%  per  annum 
attaches.  If  not  paid  within  a  year  plus  15  days  forfeiture  and 
eviction  automatically  ensue.* 

*  Under  normal  conditions  the  boliviano  is  worth  about  40  cents  U.  S. 
gold. 


LATIN-AMERICAN  SYSTEM  OF  MINING  LAW  61 

When  the  document  of  a  concession  is  delivered  an  impost  of 
one  boliviano  per  hectare  of  surface  is  payable.  This  is  to  defray 
the  cost  connected  with  entering  up  the  property  on  the  official 
map  of  the  mining  district  in  which  it  lies. 

Duties  are  levied  on  all  metals  or  metallic  ores  exported.  The 
rates  vary  with  the  degree  of  refinement  of  the  product,  and  the 
market  price  of  the  metal  or  metals  it  contains. 

When  litigation  occurs  on  the  question  of  the  ownership  of  a 
mining  property,  the  courts  are  prohibited  from  ordering  the 
suspension  of  mining  work  for  any  cause  during  the  progress  of 
the  suit.  Instead  they  are  clothed  with  the  power  to  take  pos- 
session and  continue  operations  under  the  management  of  a  court 
receiver  until  the  matters  at  issue  are  settled. 

The  miner  owns  everything  beneath  the  surface  soil  within 
vertical  planes  passing  through  his  boundary  lines.  Trespass 
beyond  these  planes  to  the  extent  of  10  meters  may  be  punished, 
when  proven,  as  common  robbery. 

All  surface  mining  rights  on  privately  owned  property  must  be 
arranged  with  the  soil  owner  if  possible.  If  not,  expropriation 
can  be  demanded  by  the  miner  in  the  courts  to  the  extent  that 
he  can  show  is  necessary  for  the  proper  working  of  the  ground. 
Mining  companies  and  individual  operators  are  held  strictly 
accountable  for  the  lives  and  health  of  employees  of  all  grades. 

Surveying,  advertising,  and  registration  charges  and  fees  of  all 
kinds  connected  with  the  acquisition  and  maintenance  of  title 
are  reasonable.  No  royalties  of  any  kind  are  collected  by  the 
government,  or  can  be  demanded  by  surface  owners. 

BRAZIL 

(Legislative    Decree  of  January  6th,  1915.     In  effect  January  1st,  1917) 

For  the  purposes  of  the  Law  all  organic  or  inorganic  minerals 
existing  upon,  in,  or  underneath  the  surface  are  classified  as 
Mines  or  Non-mines,  as  follows: 

Mines. — Metals,  or  minerals  from  which  metals  may  be  ex- 
tracted (except  iron),  mineral  oil,  coal,  asphalt  or  other  combus- 
tibles, graphite,  sulphur  and  gem  stones  in  veins  in  rock. 


62  INTERNATIONAL  MINING  LAW 

Non-mines. — 

Class  1. — Iron  ore,  salines,  nitrates,  building  stones,  sand, 
asbestos,  clay,  ochres,  mica,  peat,  phosphates  and  mineral  waters. 

Class  2. — Alluvial  deposits  containing  metals  or  gems. 

Class  3. — Quarries. 

When  deposits  of  substances  are  found  which  are  not  mentioned 
in  any  of  these  divisions,  it  is  the  duty  of  the  "  Superior  Council 
of  Mines"  to  classify  them. 

Mines  belong  either  to  the  Republic,  the  States  of  the  Republic, 
or  to  the  surface  owner,  if  any.  In  the  first  two  cases  if  claims 
are  located  upon  them  and  titles  thereto  solicited  and  acquired 
from  the  proper  authorities,  such  titles  convey  only  underground 
rights,  and  such  surface  rights  as  may  be  required  for  the  opera- 
tion must  be  obtained  in  another  and  the  ordinary  way. 

Non-mines,  when  existing  on  alienated  areas,  belong  to  the 
surface  owners  of  such  areas.  When  upon  the  public  domain 
(unoccupied  Federal  or  State  land),  they  may  be  acquired  by 
purchase  of  the  surface  in  the  ordinary  way. 

Surface  owners  may  prospect  their  ground  and  work  any  de- 
posits found  therein  without  any  authorization  from  the  govern- 
ment, but  their  operations  must  be  conducted  in  conformity 
with  the  general  laws  relating  to  the  safety  of  employees  and  to 
sanitation.  Prospecting  on  alienated  land  is  not  allowed  with- 
out the  consent  of  the  owner,  and  when  consent  is  given  the 
terms  and  conditions  are  matters  of  agreement  between  pros- 
pector and  owner. 

The  business  of  prospecting  in  the  eyes  of  the  law  not  only 
consists  in  looking  over  a  given  area  and  noting  outcrops  or  other 
mineral  indications  thereon,  but  includes  the  development  of  the 
same  by  shafts  and  levels,  and  the  sinking  of  drill  holes. 

When  a  surface  owner  refuses  to  allow  prospecting  on  his  land, 
the  law  provides  means  by  which  he  may  be  compelled  to  permit 
it,  or  by  which  the  area  desired  may  be  expropriated.  No 
prospecting  license  is  required  for  prospecting  on  alienated  land.  • 

But  prior  to  prospecting — other  than  " looking  over" — on  the 
public  domain,  a  petition  must  be  made  to  the  Minister  of 


LATIN-AMERICAN  SYSTEM  OF  MINING  LAW  63 

Agriculture,  through  the  Geological  Survey  Bureau,  in  which 
the  locality  it  is  desired  to  explore  is  specifically  located  and 
described.  When  this  is  done  it  is  obligatory  upon  the  Minister 
to  grant  the  license  free  of  charge,  and  within  30  days  from  date 
of  application.  Such  licenses  are  good  for  a  year,  with  the 
privilege  of  a  year's  extension  on  proper  showing  by  the  holder 
that  more  time  is  necessary.  The  license  grants  the  right  to 
stake  off  an  area  the  size  of  which — within  certain  limits  here- 
after given — is  a  matter  of  agreement  between  the  prospector 
and  the  minister,  but  may  not  exceed  100  hectares  (about  250 
acres),  nor  be  less  than  five  hectares  (about  12^  acres),  excepting 
in  the  case  of  river  bed  alluvials,  when  the  amount  allowed  may 
be  as  much  as  50  kilometers  (about  31  miles)  of  the  stream.  Such 
licenses  are  non-transferable,  excepting  with  the  permission  of 
the  Minister. 

The  unit  mining  claim  is  five  hectares.  The  maximum  number 
of  these  that  may  be  staked  off  and  applied  for  as  a  mining  grant 
by  an  individual  for  gem  stones  and  the  rare  metals  (gold,  silver 
and  platinum)  is  ten,  or  a  tract  of  50  hectares,  and  for  all  other 
substances  20,  or  100  hectares.  But  in  the  case  of  a  company 
the  permissible  area  is  doubled. 

The  maximum  term  for  such  grants  for  either  an  individual 
or  a  company  is  30  years.  But  at  its  end  this  term  may  be 
extended  at  the  discretion  of  the  government.  Such  grants  are 
not  transferable  except  with  the  consent  of  the  authorities,  but 
they  may  pass  to  one  living  heir,  one  living  spouse  or  one  living 
partner. 

When  the  grant  is  an  alluvial  one,  and  is  located  upon  a  public 
Federal  river,  the  maximum  size  is  50  hectares  (about  125  acres) 
for  an  individual,  and  100  hectares  for  a  company. 

These  grants,  once  given,  carry  the  exclusive  right  to  the  owner- 
ship of  all  minerals  that  may  be  found  in  them  during  its  term, 
regardless  of  whether  they  are  mentioned  in  the  grant  or  not; 
but  upon  the  grantee  rests  the  obligation  to  advise  the  authorities 
of  all  new  discoveries. 

A  discoverer  who  has  secured  a  mining  grant,  and  does  not 


64  INTERNATIONAL  MINING  LAW 

wish  to  work  it,  or  is  not  able  to,  and  desires  to  transfer  his  rights 
to  a  party  willing  and  able  to  operate  in  accordance  with  the 
requirements  of  the  law,  may  do  so,  and  in  consideration  may 
claim  the  reimbursement  of  his  prospecting  expenses  to  date  of 
transfer,  and  also,  at  his  option,  a  lump  sum  in  cash,  or  an  annual 
payment  up  to  2%  of  the  net  profits. 

All  mining  grants  carry  the  obligation  to  begin  development 
work  in  earnest  within  one  year  of  their  date,  and  to  continue 
the  same  with  reasonable  diligence  during  their  term. 

They  also  carry  the  obligation  to  pay  annually  to  the  Govern- 
ment a  rental,  which  is  agreed  upon  when  the  grant  is  issued,  but 
which  cannot  exceed  150  milreis  (about  15  cents)  per  five  hec- 
tares (or  fraction  thereof)  of  the  total  area;*  and  in  addition  a 
royalty,  which  is  also  a  matter  of  agreement,  but  may  not  be 
over  6%  of  the  net  profits.  However,  neither  of  these  imposts 
become  payable  until  two  years  of  the  term  have  elapsed,  which 
two  years  are  free. 

CHILE 

(Law  of  December  20th,  1888,  in  force  January  1st,  1917) 

The  State  claims  exclusive  ownership  and  control  of  all  mineral 
substances  existing  upon,  in,  or  under  the  surface  soil,  and 
whether  on  public  or  private  land,  except  as  to  coal  and  other 
combustibles  which,  when  occurring  on  alienated  land,  belong  to 
the  owner  of  the  surface,  but  must  be  worked  in  accordance  with 
the  provisions  of  the  law. 

Prospecting  is  free.     No  license  is  required. 

Discovery  of  mineral  is  a  necessary  pre-requisite  to  the  filing 
of  a  claim. 

Mining  claims  may  be  located  on  any  unoccupied  land,  and 
carry  with  them  the  exclusive  right  to  utilize  the  surface  within 
their  lines  for  all  necessary  mining  purposes,  as  well  as  exclusive 
underground  rights,  so  long  as  the  provisions  of  the  law  are  com- 
plied with.  But  when  it  is  desired  to  locate  upon  alienated  land, 

*  Equivalent  to  about  \Y±i  per  acre. 


LATIN-AMERICAN  SYSTEM  OF  MINING  LAW  65 

the  owner  thereof  must  first  be  secured  from  any  damage  that 
might  result  from  the  miner's  operations. 

Possession  is  maintained  by  an  annual  tax  per  hectare 
(about  2J-4  acres)  of  area. 

Not  more  than  three  mining  properties  can  be  located  upon 
the  same  lode  or  vein,  but  any  desired  number  may  be  acquired 
by  purchase. 

The  party  who  first  reports  a  new  discovery  is  considered  the 
proper  claimant,  unless  fraud  is  proven. 

The  act  of  registration  consists  of  an  appearance  before  the 
local  judge,  either  personally  or  by  agent,  to  whom  all  particulars 
of  the  find  are  reported,  and  a  sample  of  the  ore  is  given.  If  the 
discovery  has  been  made  in  a  new  mining  area,  that  is,  one  dis- 
tant five  kilometers  (about  3^  miles)  or  more  from  any  previous 
discovery,  the  finder  thereby  acquires  the  exclusive  right,  for  the 
next  50  days,  of  locating  a  total  of  three  mining  properties  on 
the  same  vein  or  deposit.  But  if  the  find  is  within  five  kilometers 
of  mines  already  known,  he  may  locate  but  one  mining  property 
on  the  vein. 

Within  90  days  after  reporting  the  discovery  (which  is  the  act 
of  registration)  a  shaft  at  least  five  meters  deep  must  be  sunk 
on  the  ore. 

The  unit  mining  area  is  the  hectare  (about  2^  acres),  measur- 
ing 100  meters  (about  300  ft.)  on  all  four  sides,  and  rectangular 
in  shape.  No  more  than  five  of  these,  laid  out  contiguously  in 
a  block,  nor  less  than  one,  may  constitute  a  mining  claim  or 
property,  on  veins  or  deposits  of  the  metals;  but  for  coal,  salt, 
salines,  oil  and  other  economic  minerals,  up  to  50  may  be  taken 
as  a  claim. 

After  the  shaft  is  sunk  to  the  required  depth,  monuments  or 
stakes  must  be  erected  at  all  corners,  and  before  the  expiration 
of  the  90-days  term  the  claimant  must  appear  before  the  district 
Judge  and  ask  for  an  official  survey,  at  his  own  expense.  When 
this  is  made,  and  the  corner  stakes  correctly  set,  the  claimant  is 
formally  placed  in  possession,  and  his  title  becomes  incontestible, 
except  by  the  State  for  failure  to  pay  the  annual  tax,  or  to  operate 


66  INTERNATIONAL  MINING  LAW 

in  accordance  with  the  provisions  of  the  law.     After  survey  and 
final  demarkation,  conveyancing  rights  are  complete. 

The  annual  tax  is  $10  per  hectare  or  fraction  thereof  on  metal 
mines,  and  $5  per  hectare  on  all  others.  *  But  if  the  mine  owner 
in  the  first  case  happens  also  to  be  the  surface  owner,  the  annual 
tax  is  only  $5  on  metal  claims.  These  taxes  are  due  in  advance, 
and  must  be  paid  sometime  in  the  month  of  March.  If  not  paid, 
the  property  is  sold  at  auction,  and  all  money  received  over  the 
amount  due  the  government  an'd  the  costs  of  sale,  is  returned 
to  the  former  owner.  If  there  are  no  bidders,  or  if  the  highest 
bid  is  less  than  the  amounts  due,  the  ground  is  declared  open 
to  location  by  anyone. 

COLOMBIA  AND  PANAMA 
(Law  of  January  1st,  1868,  with  amendments  to  January  1st,  1917) 

The  mineral  resources  of  the  country  are  owned  as  follows: 
The  Nation  is  the  owner  of  precious  stones  and  of  rock  salt, 
whether  occurring  on  the  public  domain  or  on  privately  owned 
land.  The  various  States  of  the  Republic  own  all  deposits  of 
the  precious  and  base  metals  that  occur  within  their  boundaries, 
also  all  other  desirable  mineral  substances,  when  existing  upon 
unoccupied  land;  but  when  upon  alienated  land  the  latter  are 
the  property  of  the  owners  thereof. 

The  Federal  government  will  not  grant  to  individuals  the 
right  to  search  for  or  work  deposits  of  precious  stones  or  rock 
salt,  but  will  consider  propositions  from  companies  incorporated 
under  the  laws  of  the  Republic,  and  sufficiently  capitalized.  For 
all  other  mineral  substances  existing  upon  unoccupied  land,  ap- 
plication must  be  made  to  the  Governors  of  the  States. 

Prospecting  is  free.  The  maximum  size  of  the  unit  mining 
claim  for  veins  and  lodes  and  for  any  other  kind  of  ore  deposit 
in  rock  in  place  is  600  meters  in  length  by  240  meters  in  width 
(about  1800  X  720  ft.),  and  contains  therefore  about  30  acres. 

*  Under  normal  conditions  the  Chilean  dollar  is  worth  about  40  cents 
in  U.  S.  gold. 


LATIN-AMERICAN  SYSTEM  OF  MINING  LAW  67 

The  alluvial,  dredging,  and  hydraulic  claim  unit  is  a  square 
measuring  three  kilometers  on  each  side,  or  a  rectangle  measuring 
two  kilometers  by  five  kilometers  (about  2470  acres). 

In  staking  off  lode  claims  the  measurements  must  be  made 
upon  the  surface  of  the  ground,  and  not  upon  a  horizontal  plane. 

The  legal  holder  of  a  mining  claim  of  any  kind  has  exclusive 
possession  and  usage  of  the  surface  within  his  lines,  and  of  all 
substances  found  vertically  below  the  area  so  enclosed.  No 
extralateral  rights  are  recognized. 

The  discoverer  of  an  entirely  new  lode  has  the  right  to  locate 
three  contiguous  claims  upon  it.  In  all  other  cases  only  one  unit 
claim  may  be  taken  by  an  individual  on  any  one  lode. 

The  process  of  acquiring  a  title  to  a  lode  claim  consists  first  in 
erecting  a  post  or  monument  at  the  place  of  discovery,  upon 
which  a  notice  is  posted  giving  the  name  of  the  locator,  the  date 
of  discovery,  the  name  to  be  given  to  the  claim,  and  an  approxi- 
mately correct  statement  of  the  position  of  the  corners  with  re- 
gard to  the  discovery  point.  Immediately  thereafter  the  claim- 
ant, either  personally  or  by  a  duly  authorized  representative, 
appears  before  the  chief  local  authority  of  the  district — com- 
monly called  the  Jefe  Municipal — and  formally  applies  for  the 
claim.  To  this  official  must  be  given  all  the  items  of  information 
above  enumerated,  together  with  such  a  description  of  the  sur- 
roundings as  will  serve  to  identify  the  claim  with  certainty.  All 
this  is  entered  in  a  book  in  the  Jefe's  office,  and  signed  by  the 
claimant,  who  at  the  same  time  deposits  a  recording  fee  of  50 
cents.  Two  copies  are  made  of  this  document,  one  of  which  is 
given  to  the  claimant,  while  the  other  is  at  once  dispatched  to 
the  State  authorities. 

The  locator  then  proceeds  to  stake  or  monument  his  claim 
carefully,  and  in  due  time  receives  a  notice  from  the  Jefe  that 
his  application  has  been  either  allowed  or  refused,  according  to 
whether  the  State  authorities  find  the  ground  is  open  for  location 
of  claims  or  not.  If  it  is  allowed,  he  must  pay  a  title  fee  amount- 
ing to  $4  for  a  gold  or  silver  claim,  or  $2  for  a  base-metal  claim. 
If  it  is  a  platinum  claim  the  fee  is  $25.  When  these  charges  are 


68  INTERNATIONAL  MINING  LAW 

paid  the  Jefe  personally  or  by  deputy  places  the  claimant  in 
physical  possession  of  the  ground.  Thereafter  the  title  is  main- 
tained by  reasonable  working  conditions,  and  by  the  payment  of 
an  annual  tax  of  $1  per  unit  claim  or  fraction  thereof. 

COSTA  RICA 

All  desirable  mineral  substances,  whether  existing  in  the  surface 
soil  or  in  the  underlying  rock,  or  whether  found  on  the  public 
domain  or  on  privately  owned  land,  are  under  the  exclusive  con- 
trol of  the  government  as  State  property,  and  may  only  be 
worked  under  the  provisions  of  the  mining  law. 

Prospecting  is  free  on  the  public  domain  and  upon  all  unoccu- 
pied alienated  land.  When  the  latter  is  in  crops,  or  covered  with 
buildings  or  other  surface  improvements,  the  consent  of  the 
owner  must  be  obtained,  if  possible,  before  explorations  are  be- 
gun. If  it  cannot  be  freely  secured  the  matter  may  be  brought 
to  the  attention  of  the  authorities,  who  will  enforce  the  rights 
of  the  prospector  and  miner  to  the  extent  which,  under  the  cir- 
cumstances seem  to  be  warranted.  Soil  owners  may  not  claim 
any  rights  on  minerals  discovered  by  others  on  or  under  their 
property,  but  may  do  so  by  virtue  of  discoveries  made  by  them- 
selves or  at  their  expense.  They  must  be  equitably  compensated 
for  all  surface  used  by  explorers,  either  through  rental  or  pur- 
chase, and  for  all  damages  resulting  from  their  operations. 

The  unit  area  for  mining  claims  is  a  horizontal  rectangle  meas- 
uring about  275  feet  in  length  along  the  assumed  line  of  outcrop 
of  the  vein  or  deposit  by  about  550  feet  across  it,  and  conveys  no 
extralateral  rights.  The  discoverer  of  a  new  mining  field  may 
locate  three  such  claims,  adjoining  or  separated,  along  the  line 
of  the  main  vein  found,  but  when  they  are  separated  the  dis- 
tances between  them  must  be  not  less  than  275  feet  or  accurate 
multiples  of  that  figure,  so  as  to  permit  of  the  location  of  full 
length  intermediate  claims.  He  may  also  locate  one  such  claim 
upon  each  minor  or  secondary  vein  found  by  him  in  such  a  new 
field.  In  an  old  field  only  two  such  claims  may  be  taken  up  by 


LATIN-AMERICAN  SYSTEM  OF  MINING  LAW  69 

any  one- explorer,  but  he  may  secure  as  many  others  as  he  desires 
by  purchase. 

Application  for  territory  located  is  made  before  the  Judge  of 
the  local  court  in  person  or  by  attorney,  and  after  due  advertise- 
ment and  a  public  hearing  if  necessary,  if  no  adverses  are  filed  or 
sustained  the  claimant  is  given  temporary  possession  for  sixty 
days,  during  which  period  he  is  expected  to  sink  a  shaft  at  least 
30  feet  in  depth.  An  extension  of  this  time  will  be  given  for  good 
cause  shown.  When  the  prescribed  work  is  done  the  premises 
are  examined  by  the  government  engineer,  and  if  the  develop- 
ments are  approved  by  him  a  survey  is  made  (upon  deposition 
of  its  cost  by  the  claimant),  the  location  of  all  corners  indicated 
by  temporary  stakes  and  his  report — accompanied  with  two 
copies  of  his  map — filed  with  the  authorities.  Thereafter,  as 
soon  as  the  authorities  are  formally  notified  that  permanent 
monuments  have  been  erected  at  all  corners  indicated  by  the 
engineer,  a  Certificate  of  Possession  is  made  out,  and  after  a  final 
inspection  of  the  premises  by  the  engineer  the  same  is  delivered 
if  he  reports  that  everything  is  in  order. 

The  title  so  granted  is  of  the  nature  of  a  lease  in  perpetuity, 
depending  for  its  maintenance  upon  reasonably  continuous  and 
energetic  mining  operations.  If  for  any  cause  there  is  complete 
suspension  of  work  during  the  whole  of  a  calendar  year,  the  gov- 
ernment reserves  the  right  to  declare  the  franchise  forfeited. 

The  government  makes  no  claim  for  royalties  of  any  kind,  and 
there  are  no  annual  taxes  payable  on  the  claims  other  than  those 
due  on  all  other  forms  of  real  estate. 

CUBA 

(Law  of  December  29th,  1868,  amended  in  June  24th,  1871,  declared  valid 
by  decree  of  October  10th,  1883  and  June  27th,  1884.  In  force  without 
change  on  January  1st,  1917). 

For  the  purposes  of  the  law  all  mineral  substances  are  separated 
into  three  classes,  as  follows: 

Class  1. — Earths,  silicious  rocks,  slate,  abrasives,  building 
stone,  limestone,  gypsum,  sand,  marl,  clay  and  similar  substances, 


70  INTERNATIONAL  MINING  LAW 

when  existing  upon  the  Public  Domain,  may  be  filed  upon  by  any 
one;  but  when  upon  alienated  land  they  are  considered  as  belong- 
ing to  the  owner  of  the  surface,  who  may  work  them  without 
liability  to  the  State  or  the  provisions  of  the  law,  except  such  as 
refer  to  the  safety  of  the  employees,  and  to  matters  of  sanitation. 

Class  2. — Metalliferous  allu vials  (placers),  mineral  paints, 
slag  and  scoria  of  old  furnaces,  peat,  pyrite,  bauxite,  fluorspar, 
soapstone,  kaolin  and  brick  clay,  if  on  the  Public  Domain,  may 
also  be  filed  upon  by  anyone.  When  they  are  found  on  alienated 
land  the  State  reserves  the  right  to  expropriate,  and  allow  the 
first  claimant  or  applicant  to  own  and  work  them,  unless  the 
surface  owner  is  already  mining  them.  Parties  who  secure  such 
ground  on  alienated  land  must  pay  a  tax  of  two  pesos  (about 
$1.00)  per  hectare  (about  2J-^  acres)  per  annum  to  maintain  their 
title.  But  when  any  of  these  substances  are  worked  by  the  sur- 
face owner  he  is  not  called  upon  to  pay  any  tax. 

Class  3. — Metalliferous  veins  and  deposits  of  all  kinds  (except 
pyrite),  coal,  mineral  oil,  asphalt  in  its  various  forms,  salines 
(whether  found  in  a  solid  condition  or  in  solution  as  brines), 
copperas,  sulphur  and  precious  stones,  whether  on  the  Public 
Domain  or  on  alienated  land,  may  be  filed  upon  and  operated  as 
mining  claims,  and  will  be  granted  to  the  first  applicant  in  good 
faith. 

The  law  recognizes  two  kinds  of  real  property,  viz.: 

(A)  The  soil,  which  is  understood  to  mean  the  surface,  and 
such  a  thickness  or  depth  of  it  as  may  reasonably  be  required 
for  purely  surface  activities  such  as  cultivation,   ditches  and 
reservoirs,  buildings  and  their  foundations,  and  all  others  dis- 
tinct from  that  of  mining. 

(B)  The  subsoil,  which  extends  downward  indefinitely  from 
where  the  soil  ends. 

The  former,  where  not  already  alienated,  is  the  Public  Domain. 
This  may  be  sold  by  the  State,  but  for  surface  usage  only.  The 
latter  cannot  be  sold,  but  the  State  reserves  the  right  to  allow 
mining  claims  to  be  located  upon  any  part  of  it,  and  claims  so 
located  and  approved  according  to  the  provisions  of  the  law  con- 


LATIN-AMERICAN  SYSTEM  OF  MINING  LAW  71 

stitute  a  title  in  perpetuity,  so  long  as  the  annual  mining  tax  is 
paid,  and  the  property  is  operated  in  accordance  with  the  pro- 
visions of  the  law  relating  to  the  safety  of  employees  and  matters 
of  sanitation. 

Prospecting  privileges  are  free  on  the  Public  Domain  to  all 
individuals  of  legal  age,  whether  native  or  foreign  born;  also  on 
alienated  land  (excepting  under  buildings,  fenced  and  cultivated 
areas,  and  public  property  generally,  such  as  towns,  parks, 
cemeteries,  etc.)  if  the  permission  of  the  surface  owner  is  first 
obtained.  If  refused,  or  unreasonable  conditions  are  required, 
the  law  provides  means  to  compel  fair  dealing.  But  no  excava- 
tions designed  as  a  search  for  mineral  may  exceed  10  meters 
(about  30  feet)  in  length,  width,  or  depth  in  any  one  place,  and 
before  making  such  excavation  notice  must  be  given  to  the  local 
authority  of  the  intention,  and  the  locality  to  be  explored  accu- 
rately described. 

The  unit  mining  area  is  the  hectare  (about  2j-£  acres),  laid  out 
as  a  square,  with  sides  100  meters  (about  300  feet)  long.  It 
conveys  no  extralateral  rights.  Any  number  of  such  units — but 
not  less  than  four — may  be  located  as  a  mining  claim,  provided 
they  adjoin  on  sides,  and  leave  no  vacant  spaces  between.  No 
mining  claims,  however,  may  be  located  on  substances  of  the 
first  class.  When  located  on  substances  of  the  second  class  they 
do  not  extend  downward  indefinitely,  but  terminate  when  the 
surface  payable  material  ends.  But  when  located  on  substances 
of  the  third  class  they  cover  all  material  found  vertically  under- 
neath them  as  long  as  the  claimant  wishes  to  follow  them  into 
the  earth. 

The  steps  to  be  taken  in  making  a  location  are  as  follows:  A 
written  application  on  a  special  blank  form  must  be  made  to  the 
local  chief  authority,  by  the  claimant  or  his  legal  representative, 
giving  all  particulars,  and  a  sample  of  the  mineral  found.  Tem- 
porary corner  stakes  may  be  set  up  before  doing  this.  If,  on 
examination,  the  application  appears  to  be  on  vacant  ground,  the 
local  authority  will  cause  it  to  be  advertised  for  a  period  of  30 
days,  and  if  no  adverse  claimant  appears  within  that  term,  an 


72  INTERNATIONAL  MINING  LAW 

official  survey  is  ordered  and  monuments  erected  at  each  external 
corner  of  the  group  of  unit  claims.  The  advertising  and  survey 
are  at  the  cost  of  the  applicant.  Finally,  and  within  a  period 
not  in  excess  of  four  calendar  months  from  the  date  of  the  appli- 
cation, the  title  will  be  registered  upon  payment  of  the  following 
charges,  which  include  the  annual  tax  for  the  first  year. 

For  a  claim  covering  12  hectares  (about  30  acres),  or  less,  80 
pesos  (about  $40). 

For  a  claim  covering  over  12  hectares,  and  not  in  excess  of  100 
hectares,  80  pesos  for  the  first  12,  and  l^  pesos  for  each  of  the 
remaining  ones. 

For  a  claim  covering  101  hectares  and  not  over  500  hectares,  the 
price  for  100  hectares,  plus  1%  pesos  per  hectare  for  all  above  it. 

For  a  claim  covering  over  500  hectares,  the  price  for  500 
hectares  plus  1J^  pesos  per  hectare  for  all  above  it. 

A  claim  so  registered  is  incontestable  in  perpetuity,  so  long 
as  the  annual  taxes  are  promptly  paid,  and  the  provisions  of  the 
law  relating  to  the  safety  of  employees  and  sanitation  are  com- 
plied with. 

Annual  taxes  are  as  follows: 

For  precious  stones  and  the  substances  of  the  3rd  class  (except 
iron),  5  pesos  per  hectare  (about  $2.50). 

For  iron,  and  substances  of  the  2nd  class,  2  pesos  (about  $1.00) 
per  hectare. 

Mining  claims  become  forfeited  when  the  annual  tax  is  in 
default  for  a  calendar  year  plus  15  days.  They  are  then  sold  at 
public  auction,  and  all  cash  received  at  the  same,  less  amount  of 
taxes  due  plus  5%,  is  paid  to  the  former  owner.  If  after  three 
auctions  no  buyers  appear,  the  ground  is  declared  open  and  free, 
and  may  be  appropriated  by  the  first  applicant  for  it. 

ECUADOR 

All  efforts  on  the  part  of  the  author  to  secure  a  copy  of  the 
mining  law  of  this  country  has  been  futile  up  to  date  of  going  to 
press.  No  publication  of  them  has  been  made  since  1886,  and 
the  edition  then  printed  has  been  exhausted  for  years.  Although 


LATIN-AMERICAN  SYSTEM  OF  MINING  LAW  73 

Ecuador  has  within  its  boundaries  more  than  400  miles  in  length 
of  the  Andean  range,  and  several  places  in  that  distance  are 
known  to  be  well  mineralized,  yet  the  discoveries  and  develop- 
ments so  far  have  not  proved  as  attractive  as  those  to  the  north 
in  Columbia  or  to  the  south  in  Peru.  Consequently  the  mining 
industry  of  the  republic  has  never  been  notable,  and  is  regarded 
by  its  citizens  as  of  minor  importance.  This  perhaps  accounts 
for  the  indifference  as  to  the  mining  laws.  Such  as  exist  have 
been  inherited  from  Columbia  and  Peru,  and  consist  mainly  of 
legislative  decrees  placing  in  force  the  regulations  and  customs 
in  effect  when  the  country  was  a  Spanish  colony,  coupled  with 
amendments  enacted  hastily  and  without  much  knowledge  of  or 
regard  to  the  needs  of  the  industry.  The  result  is  a  body  of  laws, 
scattered — like  those  of  Brazil — through  the  statute  books,  very 
uncertain  and  confusing  in  detail,  and  often  contradictory.  Un- 
til this  unfortunate  state  of  affairs  is  rectified  attempts  to  conduct 
mining  operations  in  Ecuador  will  labor  under  many  unnecessary 
difficulties. 

GUATEMALA 

(Law  of  June,  1908,  with  amendments  to  January  1st,  1917) 

For  the  purposes  of  the  law  all  mineral  substances  are  divided 
into  three  classes,  viz.,  Mines,  Alluvials,  and  Quarries. 

Mines. — Veins,  beds,  segregations  or  deposits  of  any  mineral 
nature  occurring  in  rock  and  differing  in  nature  from  its  sur- 
roundings, and  carrying  the  metals,  or  such  substances  as 
sulphur,  coal,  nitrates,  salt,  spars,  mineral  oils  and  gas,  asphalts, 
etc.,  belong  exclusively  to  the  State,  whether  occurring  on  public 
or  on  private  land,  and  mining  claims  can  be  located  upon  them  in 
the  first  case  in  the  ordinary  way  (excepting  as  to  sulphur  and 
nitrates,  where  the  government  reserves  the  right  to  impose 
special  conditions  upon  their  operations).  To  locate  upon 
private  land  the  consent  of  the  owner  must  first  be  obtained,  but 
if  this  is  refused,  or  unreasonable  considerations  are  demanded, 
the  law  provides  methods  by  which  just  terms  may  be  secured. 
Mines  constitute  a  real  property,  separate  from  the  surface, 


74  INTERNATIONAL  MINING  LAW 

though  both  under  certain  conditions  may  belong  to  the  same 
owner,  and  their  transfer  is  effected  by  the  usual  procedures  pro- 
vided in  the  Civil  Code.  But  in  addition,  a  document  conveying 
a  mining  title  must  pass  through  the  office  of  the  Mining  Recorder 
of  the  district  in  which  it  lies.  This  document  also  passes  title 
to  buildings,  machinery,  apparatus,  stores,  animals,  vehicles  and 
all  other  such  things  found  upon  or  properly  appurtenant  to  the 
claim  at  the  date  of  transfer.  The  holder  of  a  mining  claim  must 
operate  in  accordance  with  the  provisions  of  the  law  concerning 
the  safety  of  employees  and  sanitation. 

Alluvials. — Loose  soil  containing  metals  or  minerals  of  value, 
peat,  ochres,  precious  stones,  etc.,  when  on  the  surface  of  privately 
owned  property,  belongs  exclusively  to  the  owners  thereof,  who 
may  legally  refuse  to  grant  mining  rights  thereon.  But  if  the 
owner  desires  to  work  these  himself,  or  lease,  or  sell  part  or  all  of 
such  areas  for  mining  purposes,  he  must  locate  claims,  and  there- 
after must  operate  in  accordance  with  the  provisions  of  the  law. 
When  found  on  the  public  domain  they  are  open  to  location  by 
any  one.  Gravel  deposits  containing  gold  or  other  metals  in  the 
native  condition,  or  as  disseminated  ores  (like  cassiterite),  are 
freely  open  to  working  by  any  one  without  the  filing  of  claims, 
so  long  as  the  methods  of  operation  are  of  the  primitive  kind,  as 
with  the  pan,  rocker,  long  torn,  etc.  But  when  it  is  desired  to 
treat  such  beds  on  a  large  scale  and  with  mechanical  appliances 
such  as  by  hydraulicing  or  dredging,  special  grants  may  be 
applied  for  and  obtained,  which  confer  exclusive  rights  over  large 
areas.  Mining  claims  of  this  class  that  have  been  located  on 
private  land  and  worked,  and  then  abandoned  or  forfeited,  may 
be  entered  and  denounced  as  if  on  unoccupied  public  domain. 

Quarries. — This  class  includes  building  stones,  limestone,  clay, 
sand,  marl,  phosphates  and  other  fertilizers.  When  existing  on 
privately  owned  land  they  belong  to  the  surface  owner,  who  may 
not  be  compelled  to  work  them  or  to  give  the  right  of  working 
to  others.  If  on  public  land  they  may  be  acquired  by  the  pur- 
chase of  the  surface  from  the  government,  as  in  the  case  of  any 
ordinary  kind  of  real  estate. 


LATIN-AMERICAN  SYSTEM  OF  MINING  LAW  75 

Prospecting  is  free  to  all  individuals  of  legal  age,  whether  citi- 
zens or  aliens,  on  both  public  and  private  land,  except  where  the 
latter  is  in  crops,  or  is  covered  by  buildings  or  enclosed,  when  the 
consent  of  the  owner  must  first  be  obtained.  If  it  is  refused,  or 
unreasonable  compensation  asked,  the  matter  may  be  referred 
to  the  courts,  who  will  issue  an  exclusive  permit  good  for  two 
months,  on  a  circular  area  with  a  diameter  of  400  meters.  A 
longer  period  will  be  given  if  necessary.  Proper  security  must  be 
furnished  as  compensation  for  possible  damage. 

Other  areas  exempted  without  special  permit  from  the  Director 
General  of  Mines  are  the  environs  of  a  city,  town,  or  village,  the 
vicinity  of  railroad  lines,  canals,  aqueducts,  watering  places, 
springs,  and  reservoirs. 

The  unit  mining  claim  is  a  rectangular  parallelogram,  with  a 
superficial  area  of  ten  hectares  (about  25  acres),  and  so  laid  out 
that  two  of  its  sides  have  each  a  length  of  at  least  100  meters 
(about  300  feet).  If  a  discovery  is  made  at  a  distance  of  five 
kilometers  (about  3J£  miles)  or  more  from  any  registered  mine, 
the  discoverer  is  entitled  to  locate  and  stake  off  three  such  claims, 
but  within  that  area  only  one.  When  a  prospector  has  made  a 
discovery  and  staked  his  claim  upon  it,  his  right  of  location  upon 
that  vein  is  exhausted.  But  he  may  acquire  by  purchase  as 
many  more  claims  as  he  may  desire. 

The  rights  acquired  by  a  location  include  such  use  of  the  sur- 
face as  may  be  necessary,  but  not  the  right  to  mine  and  utilize 
the  loose  soil  thereof.  The  mining  right  begins  at  the  surface 
of  the  solid  rock  underneath  the  surface  debris,  extends  downward 
indefinitely,  and  is  limited  within  vertical  planes  passing  through 
the  boundaries.  Discovery  of  ore  is  necessary  before  a  claim 
can  be  staked  or  registered. 

The  man  who  first  reports  a  discovery  to  the  chief  official  of 
the  district  (Jefe  Politico)  is  assumed  to  be  the  discoverer  and 
rightful  owner.  The  application  must  be  made  personally  and 
in  writing  on  a  blank  provided  for  the  purpose,  and  immediately 
upon  its  provisional  acceptance  the  claimant  must  return  to  the 
premises  and  perform  such  preliminary  development  work  as  will 


76  INTERNATIONAL  MINING  LAW 

prove  the  existence  of  a  mineral  deposit  at  the  assumed  place  of 
discovery,  and  enough  to  afford  some  clue  as  to  the  kind  of  min- 
eral that  may  be  expected  therefrom.  Fifteen  days  are  allowed 
for  this,  and  for  the  staking  of  the  claim.  Meantime  the  appli- 
cation is  forwarded  by  mail  to  the  Director  General  of  Mines. 
The  latter  then  orders  an  examination  of  the  premises,  and  if  the 
facts  stated  in  the  application  are,  in  a  general  way,  verified,  the 
claim  is  provisionally  allowed  while  public  notice  is  being  given 
of  it  either  by  publication  for  at  least  three  times  in  the  official 
newspaper  of  the  region — if  there  be  any — or  by  placards  posted 
on  the  outside  of  the  office  of  the  Jefe  Politico,  which  must 
remain  displayed  for  at  least  thirty  days.  Within  this  period  of 
public  notification  objection  can  be  made  to  the  application  by 
any  one.  Also  during  this  time  enough  additional  development 
must  be  made  by  the  claimant  to  give  further  data  as  to  the 
nature  of  the  deposit,  the  metals  it  will  produce,  and,  if  a  vein, 
its  angle  of  dip.  If  the  find  is  of  the  nature  of  an  alluvial  deposit, 
or  a  bedded  vein  like  coal,  these  details  must  be  fairly  well  dis- 
played. If  the  period  of  thirty  days  is  not  sufficient  for  the  pur- 
pose, an  extension  of  an  equal  amount  will  be  granted  by  the 
Jefe.  If  all  the  proceedings  are  satisfactorily  concluded,  the 
papers  and  proofs  are  forwarded  to  the  Minister  of  Public  Works, 
who  orders  a  survey — at  the  expense  of  the  claimant — after  which 
a  Certificate  of  Ownership  is  issued  to  the  claim  holder  and  he  is 
formally  put  in  possession.  This  "certificate"  is  not  of  the 
nature  of  a  deed,  but  simply  grants  exclusive  possession  and 
usage  of  the  premises  so  long  as  the  terms,  conditions,  and  restric- 
tion of  the  law  are  complied  with.  Claims  so  acquired  cannot 
be  abandoned  without  first  giving  formal  notice  of  the  intention 
to  the  Director  General  of  Mines,  and  paying  the  cost  of  a  30 
days'  advertisement  in  the  Official  Gazette. 

A  claim  may  be  adjudged  to  have  been  abandoned  and  open 
for  relocation  by  another  party  if  for  a  period  of  six  consecutive 
months  no  work  by  at  least  four  laborers  simultaneously  has 
been  in  progress  upon  it;  or  if  for  a  total  series  of  12  months  out 
of  24  no  such  labor  has  taken  place;  or  if  during  the  first  year  of 


LATIN-AMERICAN  SYSTEM  OF  MINING  LAW  77 

possession  and  usage  the  openings  into  and  throughout  the  mine 
have  not  been  put  in  a  safe  condition.  The  procedures  connected 
with  the  denouncement  of  an  abandoned,  deserted,  or  forfeited 
claim  are  substantially  the  same  as  those  of  locating  a  new 
one. 

If  a  vein  or  deposit  has  been  pursued  to  the  boundaries  of  a 
claim,  and  the  ground  beyond  the  boundary  is  unoccupied,  the 
vein  owner  may  locate  and  take  possession  of  another  10-hectare 
claim  alongside  of  his  own,  and  may  follow  his  vein  into  and 
through  it.  But  if  the  ground  into  which  his  vein  passes  is 
legally  occupied,  he  is  not  only  under  obligations  to  stop 
at  the  line,  but  must  inform  his  neighbor  of  the  conditions 
existing. 

Legally  incorporated  companies  may  acquire  by  location  a 
claim  of  a  maximum  size  of  60  hectares,  if  they  or  their  agents 
are  the  discoverers  thereof,  and  if  the  new  mine  is  distant  five 
kilometers  or  more  from  the  nearest  registered  mining  property; 
or  one  of  40  hectares  if  the  discovery  is  within  that  distance,  and 
is  really  on  a  new  vein.  Or  if  a  company  denounce  an  abandoned 
or  forfeited  claim,  the  new  claim  that  it  applies  for  may  have  the 
areas  just  given,  according  to  the  conditions  stated.  This  pro- 
vision does  not  apply  to  partnerships,  nor  to  companies  having 
less  than  three  shareholders. 

Along  the  land  and  water  frontiers  of  the  Republic  there  is  a 
zone  in  which  mining  claims  can  be  located,  denounced,  or 
purchased  only  by  native-born  Guatemalans,  or  naturalized 
citizens. 

Until  June  23rd,  1923,  the  importation  of  mining  machinery, 
and  of  supplies  not  producible  or  obtainable  in  the  country,  is 
free.  Also,  no  export  duties  will  be  levied  on  ores  previous  to 
that  date.  There  are  no  royalties  on  any  metallic  product,  nor 
any  other  kind  of  impost,  except  the  annual  payment  of  6  pesos 
per  1000  pesos  of  valuation  to  the  National  government.  A 
Guatemalan  peso  is  worth  about  22^c.  U.  S.  gold.  Mining 
property  in  the  republic  is  assessed  at  about  40%  of  its  true 
valuation. 


78  INTERNATIONAL  MINING  LAW 

HONDURAS  AND  NICARAGUA 

The  mining  laws  of  these  two  neighboring  Central  American  States  are 
practically  identical.  That  of  Honduras  was  promulgated  in  1908,  and 
that  of  Nicaragua  in  1906.  This  digest  includes  amendments  to  date  of 
January  1st,  1917. 

The  Nation  claims  the  sole  and  exclusive  ownership  of  all 
kinds  of  deposits  of  the  metals,  and  also  of  sulphur,  saltpeter, 
precious  stones  and  combustibles  (coal,  oil,  gas,  asphalt,  etc.), 
regardless  of  whether  any  of  these  are  found  on  the  public  domain 
or  on  alienated  land. 

Prospecting  is  free,  and  any  one  of  legal  age,  whether  native  or 
foreign  born,  may  search  for  minerals  and  locate  claims  thereon, 
except  sulphur,  saltpeter,  and  combustibles.  These  three  are 
also  open  for  mining  operations,  but  only  by  special  arrangement 
with  the  national  Executive.  The  State  will  not  sell  the  land 
in  which  mineral  substances  are  found,  but  grants  exclusive 
possession  and  right  of  working  so  long  as  the  annual  mineral 
tax  is  promptly  paid  in  advance,  and  the  other  provisions  of  the 
law  fully  complied  with. 

All  other  mineral  substances  belong  to  the  owner  of  the  surface. 
If  found  on  the  public  domain  they  may  be  appropriated  and 
worked  by  any  one  without  the  formality  of  filing  claims;  or 
exclusive  ownership  in  fee  simple  may  be  obtained  by  purchase 
of  the  surface  from  the  government  in  the  ordinary  way,  or  the 
State  will  grant  exclusive  rights  to  operate  on  a  royalty  basis, 
without  purchase  of  the  surface. 

Metalliferous  alluvials  found  in  the  channels  or  on  the  banks 
of  streams,  on  either  public  or  private  land,  may  be  worked  by 
any  one  without  the  necessity  of  filing  claims,  so  long  as  the 
operations  are  of  a  primitive  nature,  and  so  long  as  no  injury  is 
inflicted  upon  surface  owners.  Or,  exclusive  rights  may  be  ob- 
tained by  filing  claims.  The  latter  procedure  is  required  in  opera- 
tions involving  the  use  of  machinery,  such  as  dredgers  and 
hydraulic  plants. 

Mine  dumps,  tailings  deposits,  and  slag  piles  belong  to  the 
properties  from  whose  ores  they  were  derived.  But  as  soon  as 


LATIN-AMERICAN  SYSTEM  OF  MINING  LAW  79 

such  mines  or  furnaces  are  legally  forfeited  or  abandoned  their 
waste  deposits  are  open  for  location  by  anyone. 

When  privately  owned  land  is  fenced  or  under  cultivation,  or 
covered  with  buildings,  reservoirs,  or  any  other  artificial  struc- 
ture, the  permission  of  the  owner  must  be  obtained  before  it  can 
be  prospected.  If  permission  is  refused,  the  matter  can  be 
referred  to  the  local  Judge,  whose  decision  is  final;  if  granted,  the 
time  allowed  cannot  exceed  70  days,  and  the  prospector  must 
give  security  for  any  damage  that  may  result. 

The  unit  mining  claim  is  the  hectare  (about  2%  acres).  Any 
number  of  these  up  to  five  may  be  taken  as  a  " claim"  or  " loca- 
tion." The  discoverer  of  a  new  vein  distant  four  kilometers 
(about  2J^  miles)  or  more  from  any  other  registered  mine  may 
locate  three  claims  upon  it,  together  or  separate,  and  he  has  ex- 
clusive rights  for  a  term  of  50  days  to  make  his  selections.  Only 
one  claim  can  be  located  by  other  parties  on  this  vein  or  upon  any 
vein  of  which  they  are  not  the  original  discoverers,  but  any  num- 
ber may  be  acquired  by  purchase. 

The  procedure  for  acquiring  title  is  as  follows :  The  discoverer, 
either  personally  or  by  a  duly  authorized  representative,  appears 
before  the  nearest  local  authority  (generally  the  Jefe  Politico)  or 
Judge,  and  announces  his  discovery,  describing  the  locality  and 
surroundings  carefully,  giving  his  name,  those  of  his  partners 
(if  any) ,  the  name  to  be  given  to  the  mine,  and  presenting  a  sam- 
ple of  the  mineral  found.  This  information  is  at  once  recorded 
in  a  special  book,  and  is  dated  and  signed  by  the  discoverer  or 
his  agent,  and  a  certificate  to  that  effect  is  given  by  the  recorder 
to  the  claimant.  The  latter  then  returns  to  his  claim  and  within 
90  days  is  expected  to  sink  a  shaft  at  least  eight  meters  (about 
25  feet)  in  depth,  and  to  do  any  other  work  that  may  be  neces- 
sary to  display  clearly  the  course  of  the  vein,  its  probable  angle 
of  dip,  its  thickness,  and  the  character  of  ore  it  carries.  Also  in 
the  same  period  he  must  lay  off  his  claim  provisionally,  setting 
temporary  stakes  at  all  corners  and  at  the  discovery  point.  If 
a  longer  term  than  90  days  is  required  for  the  completion  of  these 
details  it  will  be  granted  on  application. 


80  INTERNATIONAL  MINING  LAW 

While  he  is  doing  these  things  his  preliminary  declaration  is 
being  published,  three  times  at  ten-day  intervals  in  the  local 
newspaper,  if  any;  if  not,  the  advertising  is  accomplished  with 
handbills,  and  by  posting  on  the  doors  of  the  Court  House.  The 
papers  then  go  to  the  Judge  of  the  District  Court.  At  the  end 
of  the  90-day  period — or  its  extension — the  claimant  must  ap- 
pear again  in  person  or  by  attorney  before  the  local  Judge,  and 
apply  for  an  official  survey,  and  deposit  the  estimated  cost  of 
the  same.  This  will  be  made  by  a  government  surveyor,  who, 
in  the  presence  of  the  claimants  and  as  many  of  the  neighboring 
owners  as  will  come,  and  two  witnesses,  lays  off  the  ground  by 
deciding  first  upon  the  width  allowable.  This  dimension  is 
based  upon  the  dip  of  the  vein,  as  follows:  If  the  dip — from  the 
horizontal — is  65  to  90  degrees,  the  width  cannot  exceed  100 
meters  (about  300  ft.). 

If  from  60  to  65  degrees 115  meters  (about  350  ft.) 

If  from  50  to  60  degrees 135  meters  (about  400  ft.) 

If  from  45  to  60  degrees 165  meters  (about  500  ft.) 

If  from  30  to  45  degrees 200  meters  (about  600  ft.) 

The  length,  taken  along  the  line  of  strike,  will  be  such  a  measure 
as,  multiplied  by  the  width  as  determined  by  the  surveyor,  will 
give  the  claimant  the  number  of  hectares  he  desires  to  take.  All 
corners  are  indicated  by  the  surveyor,  whose  formal  report  and 
map  go  to  the  local  Judge  and  are  registered.  A  copy  of  this 
second  record  goes  to  the  claimant  and  constitutes  his  title.  The 
latter  must  immediately  erect  substantial  monuments  at  all 
corners  indicated  by  the  surveyor,  and  maintain  them  in  good 
order  continuously. 

Titles  are  maintained  in  force,  first,  by  the  payment  of  an 
annual  tax  of  5  pesos  (about  $2.50)  per  hectare,  due  during  the 
month  of  January;  and  second,  by  work  on  the  property.  Legally 
this  labor  must  be  continuous,  and  by  not  less  than  four  men,  ex- 
cepting on  holidays;  but  this  regulation  of  the  law  is  interpreted 
with  great  liberality  by  the  authorities,  so  that  any  claimholder 
who  is  reasonably  energetic  in  his  operations  will  not  be  interfered 
with  by  them. 


LATIN-AMERICAN  SYSTEM  OF  MINING  LAW  81 

A  mining  claim  in  good  standing  carries  all  the  minerals  found 
in  it,  and  conveyancing  rights  are  complete  after  final  registra- 
tion. All  transfers  made  before  that  must  be  advertised. 

In  the  case  of  alluvial  claims  the  dimensions  allowed  are  what 
the  claimant  finds  necessary  to  cover  the  ground  he  desires,  up 
to  a  total  of  five  hectares  (about  12%  acres).  The  law  makes 
satisfactory  provisions  for  tunnel  rights  for  drainage,  discovery 
and  working  purposes,  grants  rights  of  way  through  mining 
claims,  and  compels  owners  of  mines  drained  to  contribute  to  its 
maintenance. 

Companies  or  partnerships  who  desire  to  secure  exclusive 
prospecting  rights  over  large  areas  outside  of  established  mineral 
districts,  may  do  so  to  the  extent  of  2000  hectares  (about  5000 
acres)  at  an  annual  cost  of  50  centavos  (about  25  cents)  per 
hectare  (20  centavos  in  Nicaragua).  Such  a  concession  carries 
underground  rights  only.  Within  the  limits  of  the  grant,  and 
within  the  term  of  six  months  (one  year  in  Nicaragua),  a  tract 
not  to  exceed  200  hectares  (100  in  Nicaragua)  may  be  selected 
for  surface  usage,  and  used  as  a  mining  claim  as  long  as  desired 
by  the  payment  annually  in  advance  of  the  tax  of  two  pesos 
(about  $1.00)  per  hectare  of  such  surface,  coupled  with  com- 
pliance with  the  other  terms  of  the  concession  as  the  same 
have  been  agreed  upon,  which  vary  in  each  case  with  the  condi- 
tions and  circumstances  of  the  grant. 

There  is  an  export  duty  of  5  %  on  gold  and  silver,  but  not  on 
any  other  metal  or  substance. 

Imports  of  mining  and  ore-reduction  machinery,  and  mining, 
milling,  and  smelting  supplies  of  all  kinds  are  free  of  duty. 

MEXICO 

(Act  of  1892,  with  amendments  to  January  1st,  1917) 

The  mineral  substances  placed  under  the  provisions  of  this  law 
are  of  two  classes,  to  wit: 

A.  The  metals,  except  certain  metallic  oxides  known  as  mineral 
paints,  and  also  excepting  alluvial  tin  deposits. j 


82  INTERNATIONAL  MINING  LAW 

B.  Precious  stones,  rock  salt  and  sulphur. 

To  acquire  the  right  to  work  deposits  of  these,  which,  wherever 
found  are  regarded  as  the  property  of  the  Republic,  regard- 
less of  whether  the  surface  rights  have  been  alienated  or  not, 
claims  must  be  located  and  registered  in  accordance  with  certain 
formalities. 

Mineral  fuel  and  oil,  asphalt,  natural  gas,  building  stone,  clay 
and  earthy  substances  of  all  kinds,  if  found  on  territory  the  sur- 
face rights  of  which  have  passed  from  the  government  to  indi- 
viduals or  corporations,  may  be  freely  worked  by  the  latter  (un- 
less already  applied  for  by  another  party),  without  the  necessity 
of  filing  claims  upon  them,  but  must  be  operated  in  accordance 
with  all  the  other  provisions  of  the  law.  If  other  parties  than 
the  surface  owners  discover  and  desire  to  operate  deposits  so 
located,  they  must  not  only  file  claims  upon  them,  but  must 
obtain  the  consent  of  the  surface  owner.  If  an  equitable  ar- 
rangement cannot  be  effected  by  direct  negotiations  with  the 
owner,  the  law  provides  for  the  condemnation  of  the  land  through 
proceedings  in  the  Court  of  First  Instance  of  the  locality. 

Prospecting  is  free  to  all  inhabitants  of  the  Republic  on  the 
Public  Domain,  and  also  on  lands  the  surface  rights  of  which 
have  been  alienated.  But,  excepting  in  the  case  of  drill  holes, 
excavations  of  a  greater  depth  or  length  than  10  meters  (about 
30  feet)  are  prohibited  on  privately  owned  land,  before  the  loca- 
tion and  recording  of  a  claim. 

Upon  a  discovery  being  made  on  privately  owned  land,  or  at 
the  inception  of  operations  thereon  which  are  expected  by  the 
explorer  to  result  in  a  discovery,  a  notice  must  be  posted  on  the 
premises,  and  a  copy  of  it  filed  with  the  local  representative  of 
the  Department  of  Fomento,  in  which  the  name  of  the  applicant, 
the  date  of  the  posting  of  the  notice  on  the  ground,  and  the  size 
of  the 'claim  desired  shall  be  mentioned.  When  this  is  done  the 
claimant  acquires  the  exclusive  right,  for  three  calendar  months, 
to  carry  on  exploratory  work  on  the  premises  so  described. 

The  unit  mining  claim  on  the  surface  is  a  horizontal  square, 
measuring  100  meters  on  each  side,  and  containing  therefore 


LATIN-AMERICAN  SYSTEM  OF  MINING  LAW  83 


about  2J^  acres.  Any  number  of  such  units  may  be  located, 
either  compacted  in  a  group,  or  separately. 

Immediately  after  indication  of  the  bounding  lines  on  the  sur- 
face by  suitable  monuments  at  the  corners,  application  for  regis- 
tration is  required.  A  survey  of  the  premises  by  a  government 
engineer,  and  a  publication  in  the  nearest  paper  follow.  If,  dur- 
ing the  prescribed  period  of  the  latter  no  adverse  claim  or  claims 
are  presented,  the  application  is  approved  by  the  Department 
of  Fomento,  and  thereafter  the  title  of  the  claimant  is  absolute 
so  long  as  the  annual  taxes  are  paid. 

This  annual  maintenance  tax  is  12  pesos  (about  $6.00)  per 
unit  area,  per  year,  payable  in  installments  of  4  pesos  each,  every 
four  months,  in  advance. 

There  are  moderate  State,  County  (partido)  and  municipal 
taxes  on  gross  output. 

PERU 

(Law  of  March  23rd,  1909,  amended  to  date  of  January  1st,  1917) 

For  the  purposes  of  the  law  all  mineral  substances  are  divided 
into  three  classes,  as  follows: 

Class  1.  —  Building  stones  and  other  structural  material,  abra- 
sives, gypsum,  marl,  pottery  and  brick  clay,  mineral  paints, 
pyritous,  aluminous  and  magnesian  earths,  limestone,  phosphates 
and  peat.  These,  when  found  on  the  public  domain,  may  be 
acquired  by  purchase  of  the  surface  in  the  ordinary  way  from  the 
government.  When  occurring  on  alienated  land  they  belong  to 
the  owners  thereof,  and  the  right  to  operate  upon  them  may  be 
had  only  from  them. 

Class  2.  —  Guano,  saltpeter,  sulphur,  borax,  rock  salt,  alkali 
beds  and  mineral  springs.  These  belong  exclusively  to  the  gov- 
ernment, no  matter  where  found,  and  the  right  to  work  them  can 
be  obtained  only  by  direct  negotiations  with  the  authorities. 

Class  3.  —  All  other  substances.  These  are  subject  to  the  pro- 
visions of  the  mining  law.  They  belong  to  the  Nation  as  a 
whole,  whether  found  on  public  or  on  private  land,  and  cannot 
be  alienated.  But  the  right  to  possess  and  work  them  in  per- 


84  INTERNATIONAL  MINING  LAW 

petuity  may  be  acquired  by  any  one  capable  of  holding  property 
in  the  Republic,  whether  native  or  alien,  who  makes  proper  appli- 
cation, who  operates  in  accordance  with  the  provisions  of  the 
law,  and  who  pays  the  annual  mining  tax. 

Prospecting  is  freely  permitted  on  all  lands  whether  publicly 
or  privately  owned,  except  when  fenced,  cultivated,  or  built 
upon,  in  which  cases  the  consent  of  the  owner  must  first  be  ob- 
tained. If  this  is  refused  the  government  reserves  the  right — 
for  sufficient  cause — to  compel  consent,  excepting  under  houses, 
orchards  and  gardens.  On  all  other  privately  owned  land  the 
prospector,  upon  giving  the  owner  reasonable  security  for  possible 
damages,  may  explore  at  will. 

Exclusive  prospecting  areas,  called  " Provisional  Claims"  may 
be  obtained  on  the  public  domain.  Their  size  may  not  be  less 
than  140  hectares  (about  350  acres),  nor  more  than  1400.  They 
must  be  located  not  less  than  5000  meters  from  any  existing  min- 
ing property.  Their  term  is  one  year,  with  the  privilege  of  one 
renewal  of  equal  length. 

Mining  claims  located  upon  the  public  domain  convey  both 
underground  and  surface  rights  within  the  limits  of  their  lines. 
But  when  placed  on  privately  owned  land  the  underground  rights 
only  are  conferred,  and  the  locator  must  arrange  with  the  owner 
for  such  surface  as  he  may  need.  Ample  provisions  are  made  in 
the  law  to  protect  the  interests  of  the  miner  in  this  respect. 

The  unit  lode  mining  area  is  a  horizontal  rectangle  200  meters 
long  and  50  meters  wide  (about  2  acres) ,  the  length  to  be  disposed 
along  the  supposed  line  of  strike.  Vertical  boundaries  and  no 
extralateral  rights.  For  alluvial  deposits  the  unit  area  is  a 
square  measuring  200  meters  on  all  sides  (about  8^/2  acres). 
These  units  in  both  cases  are  called  "pertenencias."  A  " claim" 
can  consist  of  any  desired  number  of  these  pertenencias  not  in 
excess  of  seventy.  In  locating  a  claim  the  units  must  be  contigu- 
ous along  sides,  and  must  be  so  grouped  as  to  form  a  rectangular 
area  the  long  sides  of  which  are  not  greater  than  ten  times  the 
length  of  the  shorter  sides. 

The  annual  tax  for  lode  claims  is  30  soles  (about  $14.50)  per 


LATIN-AMERICAN  SYSTEM  OF  MINING  LAW  85 

unit  or  pertenencia  contained,  payable  in  advance  in  two  equal 
installments  on  or  before  the  30th  of  June  and  the  31st  of  Decem- 
ber of  each  year.  The  tax  for  prospecting  or  "  pro  visional" 
areas  is  one  sole  (about  50  cents)  per  hectare  of  area  per  annum, 
payable  in  advance.  If  the  annual  tax  is  in  default  for  any  period 
less  than  six  months  the  property  may  be  redeemed  by  the 
addition  of  a  penalty  of  50%  of  the  amount  due.  If  it  is  in 
default  for  a  year  the  penalty  is  100%.  After  that,  it  is  open 
for  denouncement  or  location  by  others. 

The  procedure  for  acquiring  a  claim  is  as  follows:  The  appli- 
cant, having  first  set  provisional  corner  stakes  (no  discovery 
appears  to  be  necessary)  makes  application  before  the  local  gov- 
ernment authority  on  a  form  specially  provided,  which  may 
be  purchased  for  five  soles.  Within  three  days  of  the  date  of 
this  document  the  authority  delivers  to  the  claimant  a  certifi- 
cate which  grants  provisional  possession  and  usage  of  the 
premises  applied  for  pending  the  proceedings  for  a  definite 
title.  During  the  next  30  days  the  application  is  advertised 
locally,  and  during  the  following  90  days  an  advertisement 
is  carried  in  the  official  government  Bulletin  published  in  the 
capital  of  the  Republic.  During  these  120  days  all  protests 
to  the  application  must  be  filed.  If  none  appear,  a  day  is  set — 
after  six  days  of  further  local  advertising — for  the  official  survey. 
This  being  made,  and  no  adjoining  or  neighboring  claimants 
having  objected  to  the  lines  of  the  survey,  the  applicant  is  form- 
ally placed  in  possession  of  the  area,  and  given  a  written  document 
by  the  government  certifying  to  his  exclusive  right  to  the  claim, 
together  with  a  copy  of  the  map  made  by  the  surveyor.  These 
documents  are  then  registered,  whereupon  the  title  becomes 
indefeasible  except  for  non-payment  of  the  annual  tax  or  non- 
compliance  with  other  provisions  of  the  law.  All  expenses  of 
advertising,  surveying,  registration,  etc.,  must  be  paid  by 
applicant  as  soon  as  they  become  due. 

At  all  external  corners  indicated  by  the  surveyor  substantial 
monuments  must  be  erected  by  the  claimant,  and  maintained  in 
good  order  and  condition  so  long  as  he  retains  ownership. 


86  INTERNATIONAL  MINING  LAW 

All  registration,  advertising,  surveying  and  other  fees  and 
charges  are  reasonable. 

Complete  conveyancing  rights  exist  as  soon  as  the  title  is  de- 
finitely granted. 

No  royalties  on  output,  and  no  other  tax  so  long  as  the  product 
of  the  property  is  treated  and  sold  in  the  country. 

The  law  specifically  provides  that  no  additional  imposts  of  any 
kind  may  be  levied,  nor  any  increase  made  in  those  provided,  for 
a  term  of  25  years  from  the  date  of  the  promulgation  of  the  law. 

URUGUAY 

(Law  of  July  24th,  1884) 

By  this  law  all  mineral  substances  are  divided  into  two  classes, 
called  respectively  Mines  and  Non-Mines.  The  former  are  the 
exclusive  property  of  the  State,  which  issues  concessions  per- 
mitting their  possession  and  usage  under  the  provisions  of  the 
law.  The  latter  belong  to  the  surface  owner  when  existing  on 
alienated  land,  and  when  on  the  public  domain  may  be  acquired 
in  the  same  way  as  that  employed  in  taking  up  agricultural  land. 

Non-Mines  are  deposits  of  those  structural  substances  like 
limestone,  sandstone,  slate,  granite,  gypsum,  aluminous  and  mag- 
nesian  earths,  silica  and  clay,  which,  occurring  on  or  near  the 
surface,  are  usually  operated  by  excavations  open  to  the  sky. 

Mines  include  all  other  substances.  Their  legal  status  is  that 
of  under-surf ace  property,  distinct  and  separate  from  the  surface. 
They  cannot  be  conveyed  by  a  deed  of  the  latter.  A  grant  of 
that  nature  having  been  created  by  the  government,  they  cannot 
be  subdivided  as  surface  real  estate  may  be,  but  remains  an  indi- 
visible entity  so  long  as  the  grant  is  in  existence. 

Prospecting  is  not  free.  A  license  must  be  secured  from  the 
local  chief  authority.  This  is  obtainable  by  any  citizen  at  a 
nominal  cost,  and  is  good  until  revoked.  Under  it  explorations 
may  be  carried  on  upon  any  part  of  the  public  domain;  and  also 
upon  all  privately  owned  property  not  fenced  or  cultivated,  or 
covered  with  buildings  or  other  permanent  surface  improvements, 


LATIN-AMERICAN  SYSTEM  OF  MINING  LAW  87 

under  the  condition  of  indemnifying  the  owners  for  any  damage 
that  may  occur  as  the  result  of  operations,  and  any  number  of 
locations  can  be  initiated  upon  discoveries  made.  In  addition, 
with  the  permission  of  the  owner  or,  if  that  is  refused,  by  means 
of  a  special  government  permit  that  will  be  issued  to  any  one 
who  will  give  security  for  damages  that  may  accrue,  prospecting 
may  be  carried  on  for  three  months  on  fenced  and  cultivated 
land.  But  no.  permits  will  be  granted  to  explore  under  orchards, 
gardens,  or  buildings  of  any  kind  without  the  written  permission 
of  the  owners  thereof,  nor  nearer  than  40  meters  to  any  building, 
railway,  highway,  or  public  utility,  or  than  70  meters  to  canals, 
ditches,  reservoirs,  public  fountains  or  mineral  springs. 

The  unit  of  surface  measurement  for  a  mining  location  is  the 
hectare,  which  may  be  taken  as  a  square,  a  rectangle  or  a  polygon, 
at  the  option  of  the  locator,  so  long  as  the  length  of  the  property 
so  constituted  is  not  greater  than  three  times  its  width.  On  a 
lode  discovery  distant  five  kilometers  or  more  from  any  other 
registered  mine  a  location  up  to  60  hectares  of  area  is  permitted 
by  the  law.  Within  that  distance  it  cannot  exceed  36  hectares. 
For  placer  deposits  and  coal  the  allowable  areas  are  respectively 
three  times  those  figures. 

Discovery  of  ore  is  a  necessary  pre-requisite  to  the  initiation 
of  a  mining  title.  When  there  are  two  or  more  claimants  for  the 
same  ground  the  first  to  register  for  discovery  is  held  to  be  the 
rightful  one.  In  the  case  of  simultaneous  applications  for 
such  registration,  the  question  is  referred  to  the  Courts  for 
adjudication. 

Registration  is  effected  at  the  office  of  the  district  judge  of 
the  Department  in  which  the  property  lies,  or  before  the  Attorney 
General  of  the  Republic  at  the  capital.  The  application  must 
be  in  writing,  and  the  document  must  give  full  particulars  and 
.complete  information  of  the  situation,  with  names  and  addresses 
of  the  interested  parties,  but  need  not  be  preceded  by  the  staking 
of  the  ground,  nor  include  any  definite  statement  of  the  area 
desired.  After  this  act  the  discoverer  may  delimit  a  tract  of  12 
hectares  around  his  point  of  discovery,  within  which,  for  a  term 


88  INTERNATIONAL  MINING  LAW 

of  150  days,  he  is  granted  exclusive  prospecting  rights,  and  during 
which  term  he  is  expected  to  sink  a  shaft  at  least  10  meters  deep, 
and  to  perform  such  other  development  work  as  will  show  up 
clearly  the  course  of  the  ore  body  along  the  surface,  its  general 
nature,  and  the  approximate  angle  of  its  dip  into  the  earth. 
Before  its  end  he  must  stake  the  area  he  desires  to  acquire,  and 
present  full  particulars  of  the  same  for  final  registration.  When 
this  is  done  the  property  is  surveyed  by  government  engineers, 
the  map  and  legal  description  are  posted  publicly,  and  advertised 
for  60  days  in  one  of  the  daily  papers  at  the  capital  of  the  Repub- 
lic, and  in  the  paper  of  the  Department  in  which  it  is  situated. 
During  this  publication  term  all  objections  to  the  issue  of  the 
grant  must  be  formally  filed  at  the  office  of  the  district  judge. 
At  its  end,  if  no  adverses  have  been  presented,  the  claimant  is 
given  a  certificate  which  constitutes  his  title,  and  which  is  in- 
contestable except  by  the  State,  and  then  only  for  fraud,  or  for 
failure  to  comply  with  the  terms  and  conditions  of  the  franchise 
granted. 

Within  the  lines  of  his  property  the  claimant  may  enjoy  full 
surface  rights  as  far  as  the  same  may  be  necessary  for  its  proper 
operation,  but  no  more.  The  underground  boundaries  of  a  con- 
cession are  determined  by  vertical  planes  passing  through  the 
lines  as  marked  on  the  surface.  But  if,  during  the  operation  of 
the  mine,  the  ore  is  pursued  to  one  or  more  of  these  planes  and 
beyond  them  into  unoccupied  territory,  the  discovery  so  made 
is  considered  the  equivalent  of  a  surface  discovery,  and  gives  the 
explorer  the  right  to  locate  up  to  12  hectares  of  additional  ground, 
taken  in  such  form  as  he  may  desire  so  long  as  its  lines  on  the 
surface  are  straight,  and  do  not  encroach  upon  any  other  valid 
and  subsisting  mining  location. 

Mining  titles  are  maintained  by  work.  The  provisions  of  the 
law  in  this  matter  are  liberal.  If,  during  six  consecutive  months, 
less  than  an  aggregate  of  four  laborers  per  day  have  been  em- 
ployed in  or  on  the  mine,  or  if  during  two  years  the  property  can 
be  shown  to  have  been  unworked  for  an  aggregate  of  12  months 
by  less  than  four  men  per  day  per  month,  abandonment  is  pre- 


LATIN-AMERICAN  SYSTEM  OF  MINING  LAW  89 

sumed  and  denouncement  becomes  legal.  But  if  the  holder  of 
the  title  can  prove  that  a  shortage  of  labor,  war,  disease  among 
workmen,  or  other  unavoidable  circumstances  have  prevented 
full  compliance  with  the  requirements  of  the  law,  he  will  be 
granted  such  exemption  from  his  obligations  as,  in  the  opinion 
of  the  authorities,  seems  just.  Further,  any  mine  which  has 
been  in  continuous  operation  for  two  years  or  more,  may  secure 
the  right  to  suspend  operations  for  a  total  continuous  period  of 
four  years,  by  paying  semi-annually  in  advance  a  tax  of  not  less 
than  75  cents  and  not  more  than  $1.25  (as  determined  by  the 
district  judge),  per  month  per  hectare  of  area  in  the  property. 

The  government  levies  a  tax  of  one-half  of  1%  on  the  gross 
value  of  the  output  at  the  mine,  if  the  ore  is  beneficiated  in 
whole  or  in  part  in  the  country,  and  1  %  if  it  is  exported  in  its  raw 
state.  There  is  also  an  export  duty  of  one-half  of  1%  on  all 
mineral  or  metal  exported,  in  any  stage  of  refinement. 

VENEZUELA 
(Law  of  June  26th,  1915,  amended  to  date  of  January  1st,  1917) 

This  law  divides  mining  property  into  three  classes,  as  follows : 

1.  The   metals,    together  with  graphite,  rock  salt,  salines  in 
general,  and  sheet  mica. 

2.  Precious  stones,  onyx,  etc. 

3.  Coal,  oil,  cement  rock,  asphalt  and  allied  substances,  and 
fossil  gums. 

Those  of  the  3rd  class,  together  with  rock  salt,  salines  and 
mineral  springs,  which  have  not  already  passed  away  from  the 
ownership  of  the  nation,  by  grants  of  the  surface,  are  inalienable, 
and  arrangements  for  working  them  can  be  made  only  by  direct 
negotiations  with  the  President  of  the  Republic,  which  take  the 
form  of  a  concession,  for  a  specified  term,  at  an  agreed  royalty 
or  rental,  or  both. 

Building  stone,  sand,  slate,  clay,  lime,  gypsum,  peat,  phos- 
phates, marl  and  other  similar  substances,  are  considered  as 
belonging  to  the  owner  of  the  surface,  and  may  be  worked  with- 
out any  obligation  to  the  State  by  their  owners,  or  anybody  to 


90  INTERNATIONAL  MINING  LAW 

whom  the  latter  give  permission.  But  all  mining  or  quarrying 
operations  on  alienated  lands  are  subject  to  inspection  by 
government  officials,  who  have  the  right  to  insist  that  proper 
precautions  are  taken  for  the  safety  and  health  of  the  workmen. 
When  these  materials  are  found  on  the  public  domain,  they  may 
be  acquired  by  the  purchase  of  the  land  from  the  government 
as  an  agricultural  or  grazing  tract,  or  permission  to  work  them 
may  be  obtained  by  direct  negotiations  with  the  President. 
The  same  procedure  applies  to  pearls,  coral,  etc.  All  contracts 
made  with  the  President  must  be  confirmed  by  the  national 
legislature. 

In  all  claims,  grants  or  concessions  covering  mining  rights, 
conveyancing  rights  are  complete  after  registration.  No  pro- 
duction from  a  mining  property  can  take  place  until  after 
registration  of  the  title,  excepting  in  the  case  of  " barranca" 
workings,  as  hereinafter  described. 

The  law  distinguishes  between  surface  and  under  surface 
property  rights.  The  first  extends  to  the  depth  of  three  meters 
below  the  actual  surface.  The  latter  begins  where  the  former 
ends,  and  continues  downward  indefinitely.  Mining  claims  and 
grants  of  all  kinds,  except  where  otherwise  clearly  stated,  as  in 
the  cases  of  alluvial  and  cement  claims,  belong  to  the  under- 
ground class  of  property. 

When  surface  owners  refuse  to  grant  mining  rights  (for  under 
surface  operations),  or  demand  unreasonable  terms,  the  law  pro- 
vides procedures  through  which  they  may  be  compelled  to  accept 
equitable  compensation. 

Mining  claims  located,  or  mining  grants  given  upon  unoccupied 
public  domain,  carry  surface  as  well  as  underground  rights,  and 
also  the  right  to  operate  for  all  classes  of  substances  found  therein ; 
but  holders  of  the  same  are  under  obligations  to  notify  the 
authorities  of  all  new  or  unexpected  substances  found  and  pro- 
duced, so  that  the  proper  taxes  may  be  assessed. 

When,  in  the  operation  of  an  alluvial  or  cement  property,  a 
lode,  vein,  or  other  mineral  deposit  in  rock  in  place  is  found  by 
the  operators,  the  discoverer  has  the  preferential  right  to  locate 


LATIN-AMERICAN  SYSTEM  OF  MINING  LAW  91 

a  claim  upon  it,  or  apply  for  a  grant,  provided  such  action  is 
taken  within  six  months  of  the  discovery. 

Mineral  claims  and  grants  of  all  kinds  are  of  the  nature  of 
contracts  between  the  claimants  or  grantees  and  the  government, 
and  lapse  automatically  when  any  default  in  the  conditions  of 
the  contract  occurs.  The  right  to  acquire  them  is  open  to  all 
individuals  of  legal  age,  except  certain  government  officials,  and 
to  corporations  properly  organized,  whether  native  or  alien. 

The  unit  claim  area  is  the  hectare  (about  2^  acres).  Any 
number  of  them  up  to  200  may  be  located  as  one  claim,  but  the 
block  so  taken  must  be  rectangular  in  shape,  with  width  not  less 
than  half  its  length,  excepting  in  the  case  of  dredging  areas, 
which  may  run  up  to  2500  hectares,  and  must  be  square  in  form. 

Fractions  between  claims  not  over  five  hectares  in  area  will  be 
given  to  the  first  adjoining  claimant  that  applies  for  them,  or 
divided  proportionally  between  adjoining  applicants  simultane- 
ously applying.  Or,  they  may  be  filed  on  by  others  if  adjoining 
owners  do  not  exercise  their  rights.  All  fractions  of  greater  size 
must  be  filed  upon  in  the  normal  way. 

Dredging  areas  are  granted  for  any  term  up  to  50  years ;  quartz 
areas  up  to  90  years. 

On  all  claims  and  grants  serious  mining  operations  must  be 
begun  within  three  years  from  date  of  same,  unless  prevented  by 
circumstances  which,  in  the  opinion  of  the  authorities,  excuse 
delay. 

Suspension  of  work  (after  beginning)  for  more  than  three  years 
entails  forfeiture,  unless  excused  by  authorities.  A  mine  is  con- 
sidered as  in  operation  if  ten  men  are  at  work  during  working 
days,  or  machinery  is  running.  At  least  half  of  the  workmen  in 
all  mines  must  be  native  born  Venezuelans. 

When  a  number  of  claims  or  grants  are  consolidated  under  one 
ownership,  of  either  an  individual  or  a  company,  the  several 
parts  of  the  consolidation  do  not  lose  their  identity.  Each  must 
be  considered  by  itself  in  respect  to  work  for  maintaining  title, 
unless  formally  excused  by  the  Minister  of  the  Interior. 

The  working  of  alluvial  or  cement  deposits  for  gold,  or  other 


92  INTERNATIONAL  MINING  LAW 

native  metals,  when  on  the  public  domain,  and  so  long  as  the 
operations  are  conducted  personally  by  the  individual,  and  with 
primitive  appliances,  as  with  the  pan,  rocker  or  long  torn,  is  free. 
The  location  and  registration  of  a  claim  are  not  necessary, 
though  advisable.  If  excavating  work  like  open  cuts,  shallow 
pits,  etc.,  is  necessary  to  reach  the  pay  gravel,  the  miner  may 
protect  himself  against  other  prospectors  by  staking  out  one  or 
more  areas  ten  meters  square,  upon  which  registration  is  not 
necessary,  though  the  civil  Chief  of  the  district  must  be  advised 
of  the  appropriation,  and  a  description  of  the  location  given  him. 
Similar  operations  to  recover  float  ore,  or  the  values  in  the  dis- 
integrated outcrops  of  veins  or  other  forms  of  surface  metallifer- 
ous deposits,  may  be  carried  on  without  registration.  But  such 
operations  do  not  protect  the  prospector  if  he  pursues  mineral 
below  the  surface  soil  and  into  bed  rock.  Unregistered  appropria- 
tions of  this  nature  may  at  any  and  all  times  be  cancelled  by 
the  authorities  if,  in  their  opinion,  the  public  interests  demand  it. 

Titles  to  claims  and  grants  are  maintained  by  the  annual  pay- 
ment of  taxes,  and  of  royalties  on  output,  any  default  in  which 
automatically  works  forfeiture.  These,  transformed  approxi- 
mately into  American  money  are  as  follows: 

Ten  cents  per  annum  per  hectare  on  claim  or  grant  area. 

Two  cents  per  gram  of  gold,  platinum,  or  mercury  recovered. 

Two-tenths  of  a  cent  per  gram  of  silver  recovered. 

Ten  cents  per  ton  of  ore  sold  or  treated  by  its  producer. 

No  tax  or  royalty  on  metal  recovered  from  unregistered  work- 
ings or  claims. 

Registration  fee  $1  plus  five  cents  per  hectare,  plus  three  <?ents 
per  hectare  if  producing  any  base  metal,  and  plus  two-fifths  of  a 
cent  per  hectare  when  the  claim  is  located  on  private  property. 

All  mining  operators  must  keep  books  of  account,  in  one  of 
which  the  amount  of  ore  produced  must  be  recorded,  and  in  the 
other  the  weight  of  metals  recovered.  Before  being  used,  these 
books  must  be  submitted  for  inspection  by  the  local  authority, 
and  validated  for  use  by  the  signature  of  the  local  Judge  and  his 
clerk. 


LATIN-AMERICAN  SYSTEM  OF.  MINING  LAW  93 

Imported  mining  machinery  with  spares,  tools,  steel,  chemicals 
and  explosives  are  free  from  duty. 

All  mines  are  subject  to  visit  and  inspection  at  all  reasonable 
hours  by  the  government  engineer,  and  must  be  operated  (as  to 
methods  and  appliances  for  safety  of  the  workmen  and  the  plant) 
in  ways  satisfactory  to  him. 

Prospecting  by  natives,  and  by  aliens  when  properly  authenti- 
cated, is  free  on  the  public  domain,  after  notice  is  given  to  the 
local  civil  Chief  of  the  intention,  and  of  the  locality  to  be  ex- 
plored. But  excavations  must  not  exceed  about  50  feet  square 
in  any  one  place,  though  they  may  be  of  any  desired  depth. 

Upon  alienated  areas  the  permission  of  owner  must  be  secured, 
but  cannot  be  asked  for  under  buildings,  fenced  or  cultivated 
lands,  or  public  property  (towns,  cemeteries,  etc.);  nor  within 
150  feet  of  a  railroad,  or  a  mile  of  fortifications. 

Exclusive  prospecting  rights  may  be  obtained  on  the  public 
domain  for  areas  not  over  800  hectares  (about  2000  acres),  and 
for  terms  not  over  one  year,  but  a  year's  extension  will  be  granted 
for  good  cause.  As  soon  as  payable  mineral  of  any  kind  is  found 
on  such  areas,  the  local  authority  must  be  notified,  and  produc- 
tion cannot  begin  until  a  contract  has  been  arranged  with  the 
Minister  of  the  Interior,  and  his  permission  secured. 

The  location  and  registration  acts  required  by  the  law  are 
fairly  simple  and  inexpensive.  Claims  must  first  be  staked  out 
by  the  claimant,  who  then  makes  written  application  to  the  civil 
Chief  of  the  district,  giving  information  as  to  area  desired,  situa- 
tion of  same,  position  of  adjoining  or  neighboring  mines  (if  any), 
names  of  owners,  and  the  kind  of  ore  and  the  nature  of  the  deposit 
expected  to  be  developed.  This  is  followed  by  30  days  of  adver- 
tising, in  the  local  paper  if  one  exists,  otherwise  by  means  of 
200  handbills,  ten  of  which  are  posted  in  public  places  in  the 
district,  and  the  remainder  carefully  distributed  among  the  in- 
habitants. If  no  objections  are  filed  with  the  authorities  within 
this  period,  the  claim  is  inspected  and  surveyed  (at  cost  of  claim- 
ant) by  the  local  inspecting  engineer,  after  which  the  claimant  is 
put  into  physical  possession,  and  his  title  becomes  incontestable, 


94  INTERNATIONAL  MINING. LAW 

except  by  the  government  for  default  in  the  payment  of  taxes  or 
royalties,  or  for  failure  to  operate  in  accordance  with  the  instruc- 
tions of  the  district  inspector  of  mines,  or  to  comply  with  labor 
conditions. 

Grants  made  for  a  specified  term  of  years  are  renewable  under 
reasonable  conditions. 

Fees  of  all  kinds  are  moderate,  also  surveying  charges. 

RESULTS 

In  the  sixty-six-year  period  from  1851  to  1916  (inclusive)  the 
contribution  of  Latin  America  to  the  metallic  wealth  of  the 
world  has  been  as  follows: 

Gold $968,875,941 

Silver. 2,856,861,933 

Copper 873,067,692 

Tin 252,767,135 

Lead 201,909,861 

Zinc 25,152,190 

Total $5,178,634,752 

The  four  principal  contributors  to  this  result  have  been  Mexico, 
Chile,  Bolivia  and  Peru.  Of  these  the  first  has  proved  to  date  by 
far  the  most  productive,  as  shown  by  the  following  table. 

Mexico  Balance  of  Latin  America 

Gold $380,339,383  $588,536,558 

Silver 1,955,984,995  900,876,938 

Copper .  .          329,849,914  543,217,778 

Tin.. 252,767,135 

Lead 193,057,936  8,851,925 

Zinc 25,152,190 

$2,884,384,418  $2,294,250,334 

For  the  purpose  of  comparing  the  condition  of  the  industry  in 
this  mining  group  with  those  of  the  other  groups  under  considera- 
tion in  this  work,  it  has  been  deemed  advisable  to  avoid  all 
figures  later  than  those  of  1913,  because  of  the  great  advance 
since  then  in  the  value  of  all  the  metals  except  gold,  and  the  cor- 
responding fall  in  the  purchasing  power  of  the  latter.  The  table 


LATIN-AMERICAN  SYSTEM  OF  MINING  LAW 


95 


which  follows  has  been  prepared  on  that  basis.  It  should  be 
remembered  that  at  the  beginning  of  the  period  it  covers,  the 
industry  of  precious  metal  mining  had  already  been  well  estab- 
lished in  all  the  countries  included. 


Latin  America,   1851  to   1913   (inclusive):  Mexico, 
(except  British,  Dutch  and 


Central  America  and  South  America 
French  Guiana) 


Metal 

Term 

Years 
in 
term 

Total  product 
of  term 

Average 
annual 
product  dur- 
ing term 

Production  of 
1913 

Gain  (  +  ) 
or  loss  (  —  ) 
in  1913  as 
compared 
with 
average 

Gold  

1851  to  1913 

.63 

$870,115,941 

$13,811,364 

$33,517,121 

+  143% 

Silver 

1851  to  1913 

63 

2  716  821  933 

43  124  157 

50  614  308 

+   17% 

Copper  .... 

1879  to  1913 

35 

741,131,252 

21,175,178 

40,941,600 

+  93% 

Tin 

1885  to  1913 

29 

198  175  Oil 

6  833  517 

28  961  804 

+335% 

Lead  

1887  to  1913 

27 

185,629,960 

6,874,443 

5,337,821 

-   20% 

Zinc  

1906  to  1913 

8 

15,461,532 

1,932,691 

694,960 

-   64% 

$4,727,335,629 

$93,751,350 

$160,067,614 

+  71% 

In  the  year  1851  the  gold  production  of  Latin  America  was 
valued  at  $5,793,334  and  that  of  silver  at  $25,374,605.  There 
were  no  other  metals  produced  except  a  small  amount  of  copper 
for  local  consumption.  Copper  ore  began  to  flow  from  Chile  to 
Europe  for  reduction  about  1870,  but  the  amount  did  not  be- 
come important  until  1877.  The  exportation  of  tin  concentrates 
from  Bolivia  commenced  about  1885.  In  1887  Mexico  began 
shipping  silver-lead  ores  to  American  smelters,  and  argentiferous 
zinc  ores  about  1900.  During  the  sixty-three  year  period  from 
1851  to  1913  the  metal  mining  industry  of  Latin  America  made 
the  substantial  progress  that  might  be  expected  in  a  region  of 
such  great  mineral  resources,  when  once  the  business  became 
firmly  established,  and  particularly  in  Mexico  which  has  been  so 
vigorously  exploited  during  the  last  thirty-five  years  by  American 


96  INTERNATIONAL  MINING  LAW 

capital.  In  fact  the  industry  in  that  country  has  been  mainly 
responsible  for  the  gain  of  71%  over  the  average  output  of  the 
entire  region,  though  the  growth  of  tin  mining  in  Bolivia  has  .been 
notable,  as  well  as  of  copper  mining  in  Chile  and  Peru.  The  gain 
in  gold  is  largely  due  to  Mexico,  where  a  production  of  $29,196,026 
was  attained  in  1911,  and  by  this  time  would  have  exceeded  that  of 
all  the  rest  of  Latin  America  but  for  the  unsettled  political  con- 
ditions that  have  prevailed  there  since  1911.  In  fact,  ever  since 
about  1888,  the  metallic  output  of  that  country  has  continuously 
been  greater  than  that  of  all  the  rest  of  Latin  America  combined. 
In  1910  the  figures  were,  for  Mexico,  $93,942,382,  and  for  the 
balance  of  the  members  of  the  group  $62,219,214. 

From  this  interesting  showing  it  would  seem  to  be  a  safe  con- 
clusion that  the  Latin  American  system  of  mining  law  produces 
its  best  results — so  far  as  the  matter  of  output  is  concerned — 
when  pushed  to  its  extreme  in  principal,  as  is  the  case  in  Mexico 
where  there  are  absolutely  no  restrictions  to  the  amount  of  ground 
that  may  be  acquired  and  held,  so  long  as  the  very  moderate 
annual  taxes  thereon  are  paid,  while  in  addition  no  discovery 
is  required.  On  the  other  hand  the  extreme  poverty  of  the  masses 
in  that  country  in  the  face  of  the  great  production  of  new  and 
permanent  wealth,  coupled  with  the  concentration  of  mining 
territory  in  the  hands  of  a  comparatively  few,  much  of  which  is 
idle,  and  the  complete  absence  of  small  holdings,  reveal  the  un- 
fortunate effects  of  a  law  which  does  not  specifically  and  definitely 
encourage  and  foster  surface  exploration  and  individual 
enterprise. 

Considering  the  group  as  a  whole,  substantial  progress  has 
taken  place  in  Mexico,  Chile,  Bolivia  and  Peru.  In  the  Central 
American  states,  and  in  Columbia  and  Venezuela  there  has  been 
little  growth  in  the  industry  for  the  last  twenty-five  years.  In 
Ecuador,  Brazil  and  Argentina  mining  is  actually  declining.  In 
Paraguay  and  Uruguay  the  production  of  metals  is  unimportant. 
In  the  countries  of  the  first  group  the  mining  laws  are  the  most 
up-to-date  of  their  class,  and  very  favorable  to  the  investor. 
The  instability  of  political  conditions  in  the  second  sufficiently 


LATIN-AMERICAN  SYSTEM  OF  MINING  LAW  97 

explains  the  stagnant  condition  of  the  industry  among  them. 
These  countries  produce  little  but  gold,  the  most  of  which  is 
recovered  by  natives  operating  in  a  small  way  on  river  bars, 
and  using  only  the  most  primitive  applicances.  In  Ecuador  and 
Brazil  the  mining  laws  have  never  been  modernized,  and  are  in 
very  bad  shape.  In  Argentina  the  latest  revision  and  codification 
is  far  too  elaborate,  and  in  a  number  of  matters  is  seriously 
restrictive,  showing  a  movement  away  from  the  simple  principles 
of  Spanish  mining  law. 

From  Mexico  since  1889  has  come,  as  shown,  more  than  half 
of  the  metallic  output  of  Latin  America.  All  of  the  zinc,  prac- 
tically all  of  the  lead,  37%  of  the  copper,  39%  of  the  gold  and 
68%  of  the  silver.  Its  law,  from  the  point  of  view  of  the  investor, 
is  by  far  the  most  simple  and  liberal  of  its  class,  and  has  served 
to  attract  enormous  amounts  of  American  capital  to  the  develop- 
ment of  its  mines  and  the  establishment  of  its  metallurgical 
industry. 

On  account  of  the  great  number  of  well-known  but  yet  idle 
mining  properties  throughout  the  whole  of  Latin  America,  many 
of  which  are  known  to  have  been  highly  productive  in  the  past 
and  are  by  no  means  exhausted,  it  will  be  many  years  before  the 
admitted  lack  of  prospectors  in  the  field  will  be  left.  The  doc- 
trines upon  which  those  of  its  mining  laws  that  have  been  modern- 
ized rests  answer  all  needs  of  the  working  populations  in  their 
present  state  of  semi-servitude.  Nor  are  they  breeding  condi- 
tions that  will  require  revolutions  to  correct  them  when  the  time 
comes  in  which  the  pioneer  mineral  explorer  will  be  needed  to 
lead  the  way  to  the  discovery  of  new  fields. 

In  the  foregoing  resume  the  statistics  of  British,  Dutch  and 
French  Guiana  have  been  omitted,  because,  as  will  be  seen  by  an 
examination  of  their  mining  laws  as  given  elsewhere,  such  mining 
as  is  in  progress  is  being  conducted  under  quite  different  systems. 
In  all  three,  though  favored  with  abundant  mineral  resources, 
the  industry  is  in  a  depressed  condition. 


CHAPTER  VII 

THE  AMERICAN  SYSTEM  OF  MINING  LAW.    DIGEST  OF 

THE    U.  S.    FEDERAL   MINING   LAW.     DIGEST   OF 

THE    MINING  LAW  OF   TEXAS.     RESULTS  OF 

THE  AMERICAN   SYSTEM.     STATISTICS    OF 

THE   PRODUCTION   OF  PRECIOUS  AND 

BASE  METALS  FROM  1851  TO  1916 

THE  AMERICAN  SYSTEM 

The  American  system  of  mining  law  is  based  upon  the  theory 
that  the  unappropriated  public  domain  of  the  United  States  be- 
longs to  the  people  of  the  nation  individually,  together  with  all 
mineral  deposits'  existing  thereon,  and  that  any  native-born 
citizen,  or  an  alien  who  has  formally  (under  the  naturalization 
laws)  declared  his  intention  of  becoming  one,  may  freely  at  any 
time,  and  to  an  unlimited  extent,  search  for  and  appropriate  any 
deposit  that  he  may  be  the  first  to  discover,  by  following  the 
procedures  prescribed  by  laws  made  by  themselves.  As  to  those 
existing  upon  land  already  appropriated,  the  necessary  corollary 
is  that  they  belong  to  the  recorded  owners  thereof,  and  may  not 
be  taken  away  except  for  public  use  under  the  operation  of  the 
doctrine  of  eminent  domain. 

The  system  in  its  details  has  two  eminently  distinctive  features. 
The  first  of  these  is  that  the  steps  prescribed  for  the  initiation 
and  maintenance  of  mining  titles  are  not  mandatory  so  far  as 
the  government  is  concerned.  All  may  be  omitted  or  neglected 
by  the  prospector  and  miner,  even  to  the  matter  of  recording 
his  discovery,  and  yet,  so  long  as  the  tract  appropriated  remains 
in  his  physical  possession,  he  may  extract  ore  therefrom  and  con- 
vert the  same  into  money  free  of  all  obligations  to  the  authorities. 
But,  on  the  other  hand,  failure  to  perform  any  one  of  the  acts 


AMERICAN  SYSTEM  OF  MINING  LAW  99 

prescribed  in  the  law  gives  to  any  fellow  citizen  who  desires  to 
possess  his  ground  the  right  and  opportunity  to  attack  his  title 
and  assert  a  legal  claim  for  the  possession  of  any  part  or  the  whole 
of  it.  In  the  case  of  a  contest  of  this  kind  the  attitude  of  the 
government  is  simply  that  of  a  preserver  of  the  peace  until  the 
courts,  before  whom  both  contestants  must  appear  and  give 
evidence,  have  rendered  a  decision  upon  the  facts  presented. 

The  second  feature  is  the  nature  of  the  extralateral  right  of 
pursuit  conferred  upon  the  lode  claim.  Differing  from  the  theory 
of  the  old  Spanish  laws  and  some  of  the  modern  Latin-American 
ones,  it  gives  this  right  not  only  to  the  vein  first  discovered  and 
to  its  complete  extent  in  depth,  but  also  to  all  others  whose  apexes 
can  be  shown  to  lie  within  the  boundaries  of  the  claim,  either  at 
its  surface  or  vertically  below  any  part  of  it.  Again,  differing 
from  the  theory  of  the  old  German  law,  this  right  of  pursuit  is 
confined  strictly  to  the  ore-bearing  channel  or  channels  that  may 
exist,  and  does  not  include  any  portion  of  the  country  rock 
enclosing  them. 

To  understand  properly  the  American  system  and  gauge  its 
comparative  worth,  it  is  necessary  to  know  its  history. 

From  the  time  when  mining  first  began  in  the  western  United 
States  (1849)  until  1865,  a  period  of  nearly  16  years,  titles  to 
mineral  property  were  initiated  and  maintained  under  laws  made 
by  the  miners  themselves.  The  industry  began  in  California 
and  spread  north,  south,  and  east  from  there,  and  the  district 
laws  framed  by  the  pioneers  of  that  State  were  reproduced  in 
very  nearly  identical  tenor  so  far  as  fundamentals  were  concerned 
in  all  other  parts  of  the  newly  opened  region.  These  laws  were 
based  upon  the  physical  conditions  encountered  by  the  miner  in 
California  and  recognized  two  classes  of  claims  called  respectively 
placer  claims  and  lode  claims.  Priority  of  discovery  and  of 
staking  determined  the  matter  of  ownership  in  both  cases.  The 
matter  of  size  varied  broadly  in  accordance  with  varied  local 
conditions.  Claims  of  both  kinds  could  be  recorded  and  posses- 
sion was  maintained  by  work.  It  was  quickly  realized  that  the 
placer  claim  was  a  temporary  holding  to  be  abandoned  as  soon 


100  INTERNATIONAL  MINING  LAW 

as  worked  out  or  exhausted  to  such  a  degree  as  to  be  no  longer 
interesting.  The  lode  claim,  however,  was  another  and  quite 
different  affair,  and  the  discoverer  was  deemed  to  have  acquired 
the  right  to  pursue  his  ore  body  downward  as  long  as  he  cared  to 
do  so,  regardless  of  where  it  led  him.  Thus,  independently  of 
the  principles  that  had  governed  in  other  mining  regions  in  the 
past,  the  doctrine  became  firmly  held  as  properly  applying  to  all 
kinds  of  mineral  deposits  other  than  allu vials. 

It  was  not  until  1865  that  Congress  passed  any  legislation  af- 
fecting mining  titles,  and  then  the  only  action  taken  was  to 
announce  the  principle  that  in  the  matter  of  disputes  between 
claimants  to  the  same  piece  of  land,  while  the  source  of  title 
must  be  recognized  as  reposing  in  the  Federal  government,  the 
latter  merely  acted  in  the  capacity  of  Trustee  for  the  people,  had 
no  inherent  rights  of  its  own  in  mineral  land,  refused  to  assert 
any  as  between  contesting  claimants  to  any  tract,  but  would 
pass  title  to  that  contestant  who  in  the  courts  established  his 
superior  rights.  The  language  of  the  Act  was  as  follows: 

Section  910  of  the  Revised  Statutes. 

"No  possessory  action  between  persons,  in  any  court  of  the  United 
States,  for  the  recovery  of  any  mining  title,  or  for  damages  to  such  title, 
shall  be  affected  by  the  fact  that  the  paramount  title  to  the  land  in 
which  such  mines  lie  is  in  the  United  States;  but  each  case  shall  be 
adjudged  by  the  law  of  possession." 

In  the  following  year  this  theory  was  again  stated  in  slightly 
different  form,  as  follows: 
Sec.  1  A.  C.  July  26th,  1866. 

"The  mineral  lands  of  the  public  domain,  both  surveyed  and  unsur- 
veyed,  are  hereby  declared  to  be  free  and  open  to  exploration  by  all 
citizens  of  the  United  States,  and  those  who  have  declared  their  inten- 
tions to  become  citizens,  subject  to  such  regulations  as  may  be  pre- 
scribed by  law,  and  subject  also  to  the  local  customs  and  rules  of  miners 
in  the  several  mining  districts,  so  far  as  the  same  may  not  be  in  conflict 
with  the  laws  of  the  United  States." 


AMERICAN  SYSTEM  OF  MINING  LAW-  101 


No  further  Federal  action  was  takei\fcr  six  years, v7>in;fihe,. 
above  given  section  of  the  Act  of  1866  was  repealed,  and  in  its 
place  the  following  was  enacted : 

Section  2319  of  the  Revised  Statutes,  being  Sec.  1  A.  C.  May 
10th,  1872. 

"All  valuable  mineral  deposits  in  lands  belonging  to  the  United 
States,  both  surveyed  and  unsurveyed,  are  hereby  declared  to  be  free 
and  open  to  exploration  and  purchase,  and  the  lands  in  which  they  are 
found  to  occupation  and  purchase,  by  citizens  of  the  United  States  and 
those  who  have  declared  their  intention  to  become  such,  under  regula- 
tion prescribed  by  law,  and  according  to  the  local  customs  and  rules  of 
miners  in  the  several  mining  districts,  so  far  as  the  same  are  applicable 
and  not  inconsistent  with  the  laws  of  the  United  States." 

These  enactments  were  followed  by  a  number  of  others,  not 
necessary  to  be  quoted  here,  all  of  which  had  for  their  object 
either  to  acquiesce  in  and  confirm  the  laws  and  customs  already 
established  by  the  miners,  and  already  in  force  for  nearly  a 
quarter  of  a  century,  or  to  supplement  them  by  such  legislation 
of  the  same  democratic  kind  as  seemed  necessary  to  clear  up 
ambiguities  and  uncertainties.  It  was  a  difficult  task.  The 
miners'  laws  were  not  the  result  of  much  knowledge  either  of 
jurisprudence  or  of  economic  geology,  but  were  simply  the  un- 
organized expression  by  the  rough  and  ready  pioneers  of  the  day 
of  natural  human  aspirations  in  one  line  of  activity  which  at  the 
time  seemed  possible  of  realization.  It  was  an  unexplored  and 
unoccupied  land  of  which  they  had  taken  possession.  The  popu- 
lations that  flowed  into  it  from  all  sides,  like  air  into  a  vacuum, 
consisted  mainly  of  American  working  men  of  limited  education 
but  unlimited  virility,  and  well  endowed  with  common  sense  and 
fundamental  ideas  of  justice.  No  government  or  law  existed 
beyond  what  was  left  of  the  futile  and  patriarchal  Spanish  sov- 
ereignty, which  was  at  once  brushed  aside  as  impossible.  Com- 
munication with  the  politically  organized  parts  of  the  nation  was 
slow  and  infrequent.  The  first  mineral  deposits  found  outside 
of  those  of  alluvial  gold  were  the  well-defined  and  orderly  fissure 


102  ITRNATIONAL  MINING  LAW 


s  ..of.,  the  •  Calif  qrjiiaii  Sierras,  which  submitted  themselves 
readily  to  the  extralateral  rights  doctrine. 

Naturally,  as  exploration  advanced  and  new  kinds  of  mineral 
deposits  were  discovered,  difficulties  arose.  Many  of  great  value 
were  found  which  fitted  badly  into  the  letter  of  the  law.  In 
consequence  a  vast  amount  of  litigation  ensued,  and  for  30  years 
or  more  (1870  to  1900)  the  western  courts  were  burdened  with 
the  problems  presented.  Little  by  little,  however,  interpreta- 
tions were  agreed  upon,  precedents  accumulated,  and  light  began 
to  shine  through  the  legal  maze.  During  all  this  time  the  miners 
who  had  to  live  and  operate  under  this  inchoate  law  exhibited 
a  truly  American  patience,  refusing  to  ask  for  any  change  in 
fundamental  principles,  and  bearing  the  disappointments  and 
losses  that  resulted  with  perhaps  a  considerable  appreciation  of 
the  idea  that  a  free  people  must  expect  to  pass  through  just  such 
a  period  of  stress  and  storm  to  hold  on  to  a  system  based,  as  this 
was,  on  purely  democratic  foundations  and  experiences. 

At  the  present  time  it  is  considered  that  practically  all  matters 
of  interpretation  necessary  to  fit  the  law  to  all  varieties  of  geolog- 
ical structure  so  far  encountered  have  been  settled  by  the  higher 
courts  of  the  land.  Now,  looking  backward  to  1849,  when  its 
basic  principles  were  first  established,  it  appears  that  during  the 
years  that  have  followed  there  has  arisen  under  its  provisions  an 
industry  so  remarkable  in  its  extent  and  vigor,  so  continuous  in 
its  advance  and  so  promising  for  its  future,  as  to  fully  warrant 
the  troublous  years  through  which  in  its  youth  it  has  been 
compelled  to  struggle.  It  would  be  foolish  to  contend  that  the 
law  is  perfect,  or  that  it  cannot  be  much  improved,  but  when 
results  accomplished  under  it  are  compared  with  those  obtained 
elsewhere  under  different  systems,  it  becomes  necessary  to 
admit  that  its  fundamental  principles  are  sound.  These  may 
be  concisely  stated  as  follows:  First,  free  prospecting  privileges, 
coupled  with  simple  and  inexpensive  rules  for  the  initiaton  of 
titles,  and  responsibility  for  its  maintenance  to  the  fellow  citizen 
instead  of  to  the  government;  and  second,  the  extralateral  right 
of  pursuit  for  all  forms  of  mineral  deposits  that  possess  continuity 


AMERICAN  SYSTEM  OF  MINING  LAW  103 

in  length  and  depth,  no  matter  to  what  geological  class  they 
belong,  or  what  difficulties  may  be  encountered  in  following  them, 
which  constitutes  it  as  the  property  granted  by  the  people  to  the 
individual  who  discovered  it.  This  is  the  magnet  that  first 
attracted  the  prospector,  and  which  has  ever  since  held  his  inter- 
est and  retained  his  services.  No  mineral  district  in  the  world 
has  been  so  thoroughly  explored  as  that  of  the  western  United 
States,  nor  does  any  begin  to  compare  with  it  in  results  obtained, 
and  yet,  after  nearly  70  years  of  energetic  search  the  processes  of 
discovery  are  still  actively  at  work,  each  year  bringing  to  the 
notice  of  capitalists  new  deposits  of  ore  worthy  of  their  attention, 
hundreds  of  which  annually  pass  from  the  condition  of  prospects 
into  that  of  producing  mines. 

In  all  other  parts  of  the  world  discovery  of  new  mineral  re- 
sources and  deposits,  except  by  accident,  has  largely  ceased,  for 
nowhere  else  does  the  prospector  exist.  By  a  most  fortunate 
combination  of  circumstances,  entirely  unpremeditated,  the 
American  mining  law  gave  the  mineral  pioneer  his  opportunity, 
for  under  its  provisions  he  has  been  able  to  initiate  a  title  to  a 
class  of  real  property  which  had  an  inherent  selling  value  because 
of  the  nature  of  the  claim  he  could  make,  and  regardless  of  the 
degree  and  amount  of  developing  he  might  or  might  not  be  able 
to  do  upon  it.  That  is  the  secret  of  the  remarkable  outcome.  It 
has  resulted  in  the  Rocky  Mountain  region  becoming  the  great- 
est metal-producing  district  of  the  globe. 

UNITED  STATES 

(Act  of  Congress  of  May  10th,  1872,  with  additions  and  amendments  to 
date  of  January  1st,  1917) 

The  public  domain  in  that  part  of  the  United  States  comprised 
in  the  States  of  California,  Colorado,  Arizona,  Idaho,  Montana, 
North  Dakota,  Nevada,  Oregon,  New  Mexico,  South  Dakota, 
Utah,  Washington,  and  Wyoming,  and  the  Territory  of  Alaska, 
are  under  the  jurisdiction  of  what  is  known  as  the  Federal  Min- 
ing Law,  the  theory  of  which  is  that  these  regions  from  the  begin- 
ning of  their  settlement  are  the  common  property  of  the  citizens 

8 


104  INTERNATIONAL  MINING  LAW 

of  the  United  States,  and  are  open  and  free  to  exploration  and 
occupation  by  them  subject  to  such  regulations  as  may  be  from 
time  to  time  prescribed  by  the  District  laws  as  made  by  the 
miners  themselves,  the  Territorial  and  State  laws  enacted  pre- 
viously to  May  10th,  1872,  and  the  Federal  law  of  that  date  with 
such  amendments  and  additions  as  may  since  have  been  placed 
upon  the  Statute  books  by  Congress. 

Prospecting  is  free.  Any  citizen  of  either  sex,  or  alien  who  has 
declared  his  intention  of  becoming  a  citizen,  if  of  legal  age,  may 
prospect  and  operate  upon  unoccupied  land,  may  locate  as  many 
mining  claims  as  desired  and  hold  and  work  them  without  rent, 
royalty,  or  any  form  of  Federal  tax  or  duty,  so  long  as  the  pro- 
visions of  the  law  in  respect  to  mining  property  are  observed; 
and,  after  the  completion  of  $500  worth  of  developments  or  im- 
provements in  or  upon  such  a  claim,  application  may  be  made  for 
a  patent,  which,  when  allowed  after  due*  formalities,  conveys  fee 
simple  title  to  the  surface  within  the  boundaries  of  the  same;  and, 
in  addition,  for  lode  claims,  the  right  of  indefinite  pursuit  in 
depth  beyond  side  lines,  but  within  planes  passing  through  end 
lines  prolonged  horizontally  and  vertically  indefinitely,  of  all 
veins,  lodes,  or  other  classes  of  deposits  occurring  in  rock  in  place, 
the  top  or  apexes  of  which  appear  on  the  surface  within  its  lines, 
or  may  be  found  beneath  that  surface  if  yet  within  the  vertical 
planes  projected  downward  through  its  boundaries.  There  is  no 
obligation  on  the  part  of  the  claim  holder  to  apply  for  patent,  and 
all  the  rights  enumerated  above  are  inherent  to  the  possessory 
claim  from  the  date  of  its  location. 

Four  classes  of  claims  are  recognized,  namely,  Lode  claims, 
Placer  claims,  Mill  sites,  and  Tunnel  sites. 

The  Lode  Claim  is  a  parallelogram  measuring  1500  feet  along 
its  center  line  and  600  feet  (or  less)  in  width  at  right  angles 
thereto.  End  and  side  lines  must  be  parallel  to  each  other. 
Discovery  of  mineral  in  rock  in  place  must  occur  before  the  claim 
may  legally  be  staked,  but  not  necessarily  of  commercial  value.  A 
post  is  first  erected  at  the  discovery  pit  or  open  cut  or  shaft  with 
a  notice  thereon  giving  the  name  or  names  of  the  locators,  the 


AMERICAN  SYSTEM  OF  MINING  LAW  105 

date  of  the  discovery,  and  the  name  of  the  claim.  Thereupon  the 
surface  side  and  end  lines  are  indicated  by  means  of  substantial 
posts  or  monuments  erected  at  each  angle,  and  at  the  center  of 
the  end  lines.  Within  the  succeeding  60  days  the  locator  must 
perform  enough  excavating  work  to  clearly  show  ten  feet  or  more 
of  the  lode  in  depth.  The  surface  boundaries  may  be  so  disposed 
that  the  discovery  shaft  is  situated  at  any  point  desired,  so  long 
as  it  is  within  them.  Within  90  days  after  discovery  date  the 
claim  must  be  recorded  at  the  office  of  the  Clerk  of  the  County  in 
which  it  lies,  and  this  record,  in  addition  to  the  facts  given  on  the 
location  notice,  must  include  such  a  description  of  the  situation 
and  its  vicinity  as  will  serve  reasonably  to  identify  the  ground. 
The  recording  fee  is  $1.25.  As  soon  as  record  is  made,  convey- 
ancing rights  of  all  kinds  are  complete,  and  the  work  performed 
makes  the  claim  a  valid  and  subsisting  one  until  the  end  of  the 
calendar  year  in  which  the  location  was  made,  and  also  to 
the  end  of  the  year  following.  But  at  some  time  during  this 
second  calendar  year,  at  his  convenience,  the  claimant  must  begin 
the  annual  assessment  work,  and  should  complete  it  if  possible 
before  the  year  ends.  But,  if  that  be  impossible,  any  balance  left 
undone  at  the  end  of  the  year  may  be  finished  up  in  the  year 
following,  provided  the  work  so  left  over  is  finished  up  without 
cessation  of  labor  on  each  working  day.  This  annual  assessment 
work  consists  of  the  expenditure  in  labor  or  improvements  of 
$100.  At  any  time  after  it  is  finished  the  claimant  may  record 
an  affidavit  evidencing  the  performance  of  the  work,  and  such  a 
document  (which,  however,  is  not  obligatory)  is  held  to  be  prima 
facie  proof  of  the  continued  validity  of  the  title. 
(  No  survey  is  required.  The  law  does  not  provide  any  specific 
conditions  under  which  forfeiture  shall  automatically  take  place. 
If  the  annual  work  is  not  performed,  any  individual  who  desires 
may  locate  the  ground  in  his  own  name.  But,  unless  and  until 
such  a  party  enters  the  claim,  and  performs  thereon  all  the  proper 
acts  of  location  as  heretofore  described,  the  first  title  continues 
valid  and  subsisting  in  spite  of  the  failure  of  its  owner  to  do  the 
annual  work. 


7OTK 


106  INTERNATIONAL  MINING  LAW 

The  Placer  Claim  is  a  tract  of  20  acres,  and  any  number  of  them 
may  be  taken  by  an  individual.  If  located  upon  unsurveyed 
public  land  such  claims  may  be  of  any  shape  necessitated  by  the 
topographical  features  of  the  vicinity.  But  if  placed  upon  sur- 
veyed land  they  must  conform  in  shape,  area,  and  position  to  the 
legal  subdivisions  established  by  the  government.  An  associa- 
tion of  eight  individuals  may  locate  eight  of  such  20-acre  tracts 
adjoining,  making  thereby  what  is  called  a  "  joint  location," 
and  may  repeat  the  process  indefinitely.  Each  of  these  two  kinds 
of  placer  claims  when  located  must  be  provided  with  a  discovery 
notice  and  posts  at  each  corner  or  angle  of  the  claim,  and  within 
90  days  thereafter  must  be  recorded.  The  annual  labor  require- 
ments for  the  maintenance  of  possession  as  against  other  citizens 
are  the  same  as  for  lode  claims,  regardless  of  whether  the  claim  is  a 
single  one  of  20  acres,  or  a  joint  location  of  160  acres.  When  the 
claim  is  situated  upon  surveyed  land  no  location  or  discovery 
shaft  is  required. 

Any  class  or  kind  of  mineral  deposit,  excepting  lodes  and  other 
aggregations  of  minerals  in  rock  in  place,  such  as  coal,  metallif- 
erous alluvials,  mineral  oil  and  gas,  asphalts,  salines,  sulphur* 
building  stones,  etc.,  may  be  acquired  by  the  filing  of  placer 
claims.  This  form  of  mining  title  confers  no  extralateral  rights, 
nor  the  right  to  own  or  operate  any  vein  or  lode  or  any  other  kind 
of  mineral  deposit  of  that  class,  that  are  known  to  exist  as  passing 
through  or  under  it,  at  the  time  of  location,  or  of  application  for 
patent.  But  any  lodes  that  may  be  discovered  within  its  lines 
after  the  last  date  belong  to  its  owner,  but  may  not  be  pursued  in 
depth  outside  of  its  lines  projected  vertically  downward. 

The  Mill  Site  is  a  five-acre  tract,  one  of  which  may  be  located 
for  each  lode  claim  taken.  It  is  supposed  to  be  placed  on  non- 
mineral  land,  and  nominally  has  no  mineral  rights.  The  pro- 
cedures required  in  the  processes  of  location,  staking,  and  record- 
ing are  similar  to  those  for  lode  and  placer  claims.  If  allowed 
to  go  to  patent  without  contest,  all  underground  and  surface 
mineral  rights  are  acquired  except  that  of  the  extralateral  pursuit 
of  any  veins  or  lodes  that  may  at  any  time  thereafter  be  discov- 


AMERICAN  SYSTEM  OF  MINING  LAW  107 

ered  having  apexes  within  its  surface  lines,  except  as  to  such  as 
were  known  prior  to  the  date  of  patent  application. 

The  Tunnel  Site  is  a  tract  of  land  3000  feet  long  in  the  direction 
of  the  line  of  the  bore,  and  as  broad  as  the  width  of  the  same, 
along* which  the  claimant  has  the  exclusive  right  to  drive,  and  to  ac- 
quire the  ownership  of  all  veins  found  while  doing  so  that  have 
not  been  (at  the  time  of  the  intersection)  already  discovered  and 
claimed  on  the  surface,  to  the  extent  of  750  feet  on  each  side  of  the 
center  line  of  the  tunnel.  This  line  should  be  blazed  and  staked 
on  the  surface  at  intervals  of  500  feet,  a  notice  posted  at  the 
entrance  and  a  copy  of  the  same  recorded.  When  a  new  vein 
is  encountered  it  must  be  staked  on  the  surface  in  the  ordinary 
way  of  lode  claims,  taking  into  account  the  angle  of  dip  as  shown 
in  the  tunnel,  and  recorded,  but  no  discovery  shaft  is  required. 
By  this  procedure  the  claimant  acquires  the  right  of  way  through 
patented  and  unpatented  claims  along  his  line,  and  the  ownership 
of  whatever  ore  may  be  found  in  passing  through  them,  but  not 
the  right  to  drive,  sink,  raise  or  stope  upon  them.  When  the 
3000-foot  limit  is  reached  he  may  continue  his  operations  indefi- 
nitely along  the  same  line,  and  if  more  unknown  veins  are  found 
they  may  be  staked  and  claimed  on  the  surface,  but  in  this  case 
discovery  shafts  must  be  sunk  upon  them.  No  patents  are 
obtainable  for  tunnel  sites,  but  work  done  in  driving  them  (up  to 
a  length  of  3000  feet)  can  be  applied  as  assessment  work  on  the 
new  j^eins  cut  and  claimed  within  that  distance,  and  the  loca- 
tions made  on  such  veins  may  be  patented  in  the  ordinary  way. 
Beyond  the  3000-foot  limits  the  driving  costs  cannot  be  applied 
as  assessment  work  on  new  veins  found.  The  law  makes  no  pro- 
visions for  the  abandonment  or  forfeiture  of  tunnel  site  claims. 

There  is  no  obligation  on  the  part  of  owners  of  lode  or  placer 
claims  or  mill  sites  to  patent,  and  the  possessory  title  when  duly 
maintained  by  the  annual  assessment  work  is  exactly  as  good  as 
it  would  be  after  patenting  so  far  as  the  rights  of  the  claimant  are 
concerned.  The  steps  required  for  the  act  are  somewhat  expen- 
sive and  complicated,  and  the  services  of  an  attorney  are  gener- 
ally necessary.  The  last  step  is  that  of  payment  for  the  land. 


108  INTERNATIONAL  MINING  LAW 

For  lode  claims  and  mill  sites  the  price  is  $5  per  acre  or  fraction 
thereof,  and  for  placer  claims  $2.50  per  acre.  When  the  land  is 
paid  for  and  the  patent  is  granted  the  document  evidencing  it 
confers  a  fee  simple  title  and  thereafter  no  annual  assessment 
work  is  require^. 

Unpatented  mining  claims  are  not  taxable  by  the  State,  as  they 
enjoy  the  status  of  being  still  a  portion  of  the  Public  Domain,  no 
matter  how  extensively  they  may  have  been  developed  by  their 
owners,  nor  how  large  may  have  been  the  profits  derived  from 
them. 

Patented  claims  are  taxed  by  the  States  on  the  same  basis  as 
other  real  estate  within  its  borders,  which  is  that  of  their  assessed 
valuation  as  determined  by  their  acreage  and  the  value  of  the 
improvements  thereon.  In  addition  to  this,  some  of  the  mining 
States  impose  a  tax  either  on  gross  product  or  on  net  profits. 
There  are  no  Federal  taxes  or  royalties  of  any  kind  on  mining 
property  held  under  the  Federal  mining  law. 

Owners  of  lode  or  placer  claims  or  mill  sites  enjoy  exclusive 
right  to  the  possession  and  usage  of  the  surface  within  their  lines 
and  all  things  thereon  such  as  timber  and  water;  and,  on  the 
other  hand,  are  under  the  obligation  to  allow  all  reasonable  and 
necessary  easements  to  adjoining  and  neighboring  owners. 

Prospecting  or  mining  on  private  land  the  title  to  which  has 
been  obtained  through  laws  other  than  those  pertaining  to  min- 
ing, except  with  the  consent  of  the  owner,  is  illegal,  and  there  are 
no  means  by  which  such  owners  may  be  compelled  to  allow  such 
privileges.  But  the  owner  of  a  lode  claim  may  pursue  his  vein 
underneath  the  surface  of  such  property  without  permission. 
On  the  other  hand,  the  owner  of  such  a  tract  has  the  exclusive 
right  of  possession  and  usage  of  any  kind  of  mineral  value  that 
may  be  found  thereon,  but  not  the  right  to  pursue  any  vein  or 
lode  that  may  outcrop  within  his  lines  beyond  the  same. 

The  law  makes  suitable  provisions  for  water,  reservoir,  ditch 
and  tailing  rights  and  sites. 

In  most  of  the  States  in  which  the  Federal  Mining  Law  governs 
mining  rights,  the  States  themselves  have  enacted  supplementary 


AMERICAN  SYSTEM  OF  MINING  LAW  109 

laws  which  provide  for  and  cover  contingencies  not  contemplated 
in  the  National  Acts.  None  of  these  can  change  the  fundamental 
principles  upon  which  the  latter  is  based,  but  do  enlarge  in  matters 
of  detail.  There  is  little  variation  from  each  other  in  these 
State  laws,  and  in  a  work  of  this  kind  no  necessity  of  presenting 
digests  of  them.  But  whenever  mining  operations  are  contem- 
plated under  the  Federal  law  it  will  always  be  advisable,  and 
sometimes  quite  necessary,  to  take  into  account  the  law  of  the 
particular  State  in  which  they  are  to  be  conducted. 

DIGEST  OF  MINING  LAW  OF  TEXAS 

(Act  of  1913,  with  amendments  to  date  of  January  1st,  1917) 

All  public  lands  of  all  kinds,  all  lands  heretofore  sold  with 
mineral  reservation,  and  all  those  which  may  hereafter  be  sold 
with  such  rights  reserved;  also  all  lands  purchased  to  date,  or 
which  may  hereafter  be  purchased  with  relinquishment  of  the 
mineral  rights  therein,  are  placed  under  the  provisions  of  this 
Act,  and  are  thrown  open  to  citizens  of  the  United  States,  and 
such  as  have  heretofore  or  may  hereafter  declare  their  intention  f 
of  becoming  citizens,  to  prospecting  and  to  occupancy  for  mining 
purposes,  under  the  leasehold  system.  To  this  end,  mineral 
deposits  are  classified  as  follows: 

1.  Petroleum  and  Natural  Gas. 

2.  Coal  and  Lignite. 

3.  Metals  and  other  Minerals. 

In  the  first  case  (oil  and  gas),  a  maximum  area  of  1280  acres, 
or  two  square  miles,  is  allowed  to  an  individual  or  corporation, 
but  not  over  200  acres  within  10  miles  of  a  producing  and  operating 
well.  Application  for  the  ground  desired  must  be  made  to  the 
County  Surveyor,  and  after  certain  simple  and  inexpensive 
formalities  have  been  complied  with,  a  permit  is  issued  giving  the 
applicant  the  right  to  drill  or  otherwise  explore  under  reasonable 
conditions.  If  oil  or  gas  is  found  in  payable  quantities,  the 
operator,  before  removing  any  from  the  premises,  must  take  out  a 


110  INTERNATIONAL  MINING  LAW 

lease.  This  may  run  for  any  period  up  to  10  years,  and  costs 
$2  per  acre  per  annum  in  advance.  In  addition,  a  royalty  of 
12M%  of  the  gross  value  of  oil  sold,  and  10%  of  the  gross  value 
of  gas,  is  demanded  by  the  State.  When  such  leases  are  taken  out 
for  lands  the  surface  rights  of  which  have  been  alienated,  the 
lessee  must  also  pay  20  cents  per  acre  per  annum  to  the  surface 
owner. 

In  the  second  case  (coal  and  lignite),  the  application  to  prospect 
is  made  to  the  Clerk  of  the  County,  and  the  maximum  area 
allowed  is  2560  acres,  or  four  square  miles.  The  term  is  20 
years,  with  preference  renewal  right  at  end  of  same.  The  State 
demands  a  royalty  of  four  cents  per  ton  on  lignite  and  six  cents 
per  ton  on  coal,  payable  monthly  on  sales;  but  after  the  third 
year  of  operations  this  royalty  must  amount  to  not  less  than  the 
equivalent  of  $4  per  acre  per  annum  on  the  tract. 

In  the  third  case  (all  other  minerals),  the  ordinary  mining  claim 
is  a  parallelogram  1500  feet  long  and  600  feet  wide,  of  unlimited 
vertical  depth,  and  conveys  no  extralateral  underground  rights. 
No  prospecting  license  is  required.  The  location  acts  are  simple 
and  inexpensive.  No  discovery  of  mineral  seems  to  be  required, 
but  a  10-foot  shaft  or  open  cut  must  be  excavated  before  recording. 
Three  months'  time  after  date  on  location  stake  is  allowed  for  this 
and  other  preliminary  acts.  Recording  fee  is  $1.  Within  one 
year  an  official  survey  is  required,  for  which  a  charge  not  to  ex- 
ceed $20  is  allowed  to  the  County  Surveyor.  When  his  plat  and 
field  notes  are  completed  they  are  forwarded  to  the  Commissioner 
of  the  Land  Office  of  the  State  together  with  a  filing  fee  of  $1. 
As  soon  as  these  documents  are  accepted  the  title  is  complete, 
and  is  maintained  thereafter  in  good  order  by  the  doing  of  $100- 
worth  of  work  or  improvements  per  annum  on  the  claim,  and  the 
filing  of  an  affidavit  in  the  Land  Office  evidencing  the  same.  No 
more  than  five  of  these  claims  are  permitted  to  be  held  at  one  time 
by  an  individual  or  corporation. 

If  it  is  desired  to  locate  a  placer  claim,  or  one  to  cover  a 
deposit  of  clay,  baryta,  salt  or  other  salines,  building  stone, 
gypsum,  mineral  paint,  nitrates  or  any  other  non-metallic  earthy 


AMERICAN  SYSTEM  OF  MINING  LAW  111 

substance,  the  procedure  is  identical,  but  the  claim  may  be  up  to 
40  acres  in  area.  It  must  conform  to  legal  subdivisions  if  pos- 
sible, and  no  individual  or  corporation  is  allowed  to  hold  more 
than  eight  of  these  at  one  time. 

On  all  metals  and  minerals  extracted  and  sold  from  claims  of 
this  third  class,  the  State  demands  a  royalty  of  5%  per  annum 
on  the  gross  value  of  the  output. 

Mining  claims  of  all  kinds,  after  the  title  to  the  same  is  per- 
fected, are  subject  to  taxation,  like  all  other  forms  of  real  property. 

RESULTS 

The  metallic  product  of  the  mines  of  those  western  American 
states  that  operate  under  the  provisions  of  the  Federal  mining 
law,  for  the  sixty-six  year  period  from  1851  to  1916  (inclusive), 
has  been  as  follows: 

Gold $3,695,922,075 

Mercury 104,721,907 

Silver 1,930,478,241 

Lead. -. 616,335,082 

Copper 2,633,672,533 

Zinc 155,785,934 


$9,136,915,772 

As  the  discovery  of  gold  in  California  occurred  in  1847,  becom- 
ing so  well  known  during  1848  that  the  stampede  for  the  mines 
was  in  full  swing  in  1849;  and  as  the  generally  accepted  output 
of  that  metal  for  1851  was  $55,000,000,  it  is  probable  that  the 
foregoing  figures  should  be  greater  by  at  least  a  hundred  millions 
to  correctly  represent  the  total  metallic  output  of  the  West  to 
the  close  of  1916.  In  1853  the  early  maximum  gold  production 
of  $65,000,000  was  reached,  after  which  date  there  was  a  slow 
but  steady  decline  to  the  figure  of  $30,000,000  in  1883.  This 
was  followed  by  a  steady  annual  increase  until  the  prevailing 
figures  of  recent  years  were  attained,  which  have  been  less  than 
ninety  millions  per  year  only  once  since  1905.  The  output  of 
1916  was  valued  at  $92,251,400. 


112  INTERNATIONAL  MINING  LAW 

The  production  of  mercury  began  almost  at  the  same  time  as 
that  of  gold,  the  value  of  the  yield  of  1851  being  officially  rated 
at  $1,334,707.  The  maximum  output  of  $4,233,562  was  reached 
in  1875,  when  silver  production  at  the  Comstock  lode  in  Nevada 
was  at  its  hight,  and  also  about  the  time  when  the  smelting  in- 
dustry was  beginning  in  the  West.  Silver  production  also  began 
with  that  of  gold  but  until  1861  consisted  only  of  such  small 
amounts  each  year  as  were  recovered  from  placer  gold.  From 
that  date  onward,  as  the  mines  of  Nevada,  Montana,  Utah  and 
Colorado  were  discovered  and  developed,  it  became  a  steadily 
increasing  factor  in  the  total  product  of  the  West,  reaching  a 
maximum  in  1889  of  $66,396,988  when  the  Leadville,  Creede  and 
Aspen  districts  in  Colorado  were  at  their  best.  A  serious  decline 
followed  as  the  result  of  the  demonetization  of  the  metal  in  1893, 
recovery  from  which  is  not  yet  complete.  The  value  of  the 
product  of  the  year  1916  was  $47,957,540. 

Lead  production  began  in  1873  and  has  steadily  grown  in  im- 
portance. The  yield  in  1916  amounted  in  value  to  $48,672,872. 

Beginning  in  a  small  way  in  Colorado  in  1871  the  yield  of  cop- 
per from  the  western  American  mines  has  outstripped  the  record 
of  that  of  all  the  other  metals  put  together,  its  value  in  1916 
having  been  the  remarkable  sum  of  $447,229,448,  nearly  three 
times  that  of  1913.  The  figures  for  zinc  have  been  almost  as 
astonishing.  Production  began  in  1903,  and  by  1916  had  at- 
tained a  value  of  $69,253,776.  In  the  case  of  both  of  these  metals 
the  major  part  of  the  gain  over  the  figures  of  1913  has  been  due 
to  the  advance  in  the  market  price  since  the  beginning  of  the 
European  war. 

These  figures  are  witnesses  of  the  remarkable  growth  and 
vitality  of  the  western  American  mining  industry,  and  are  par- 
ticularly notable  in  the  case  of  the  precious  metals  as  showing 
that  during  the  final  years  of  the  term  under  consideration  the 
output  of  gold  was  greater  by  nearly  50%  than  that  of  the  best 
year  of  the  days  of  placer  mining,  while  that  of  silver  was  within 
20%  of  the  best  year  previous  to  the  demonetization  of  that 
metal. 


AMERICAN  SYSTEM  OF  MINING  LAW 


113 


For  the  purpose  of  comparing  the  condition  of  the  industry 
under  normal  conditions  with  that  of  the  other  five  great  metal 
mining  regions  of  the  world,  the  following  table  is  presented, 
covering  the  sixty-three  year  period  from  1851  to  1913  inclusive, 
omitting  the  figures  for  1914-15  and  16,  during  which  years 
such  abnormal  prices  have  prevailed  for  all  the  metals  that  com- 
parisons in  terms  of  value  of  output  are  out  of  the  question.  It 
shows  substantial  gain  over  the  average  of  the  term  in  the  output 
of  all  the  metals  except  mercury,  which,  being  no  longer  used  in 
the  treatment  of  silver  ores,  and  much  less  than  formerly  in  the 

Western    United  States,   1851   to   1913   (inclusive):  Alaska,   Arizona,   California,   Colorado, 

Idaho,    Nevada,    New    Mexico,    North    Dakota,    Oregon,    South    Dakota,    Utah, 

Washington  and  Wyoming 


Metal 

Term 

Years 
in 
term 

Total  product 
of  term 

Average 
annual 
product  dur- 
ing term 

Product   of 
1913 

Gain  (+) 
or  loss  (  —  ) 
in  1913  as 
compared 
with 
average 

Gold  

1851  to  1913 

63 

$3,411,336,375 

$54,148,196 

$88,844,400 

+  65% 

Mercury.  .  . 

1851  to  1913 

63 

98,495,202 

1,563,416 

813,171 

-  48% 

Silver  

1851  to  1913 

63 

1,805,795,101 

28,663,414 

40,348,100 

+  40% 

Lead  

1873  to  1913 

41 

512,015,787 

12,488,189 

23,738,050 

+  90% 

Copper  .... 

1879  to  1913 

36 

1,865,442,235 

51,817,840 

156,895,751 

+  203% 

Zinc 

1903  to  1913 

11 

51  261  208 

4  660  109 

14  172  620 

+204% 

$7,744,345,908 

$153,341,164 

$324,812,092 

+  111% 

recovery  of  gold,  suffered  such  a  serious  loss  of  demand  and  price 
that  the  suspension  of  operations  at  all  but  the  largest  Calif ornian 
mines  became  advisable.  However,  immediately  upon  the  re- 
vival of  prices  in  1914,  production  was  resumed,  and  at  the  pres- 
ent time  in  value  is  nearly  three  times  that  of  the  average  of  the 
period,  the  output  of  1916  having  sold  for  $3,643,800.  In  reality, 
the  case  of  mercury  is  one  of  the  evidences  of  the  substantial 
condition  of  the  metal  mining  industry  in  the  West,  for  it  signifies 


114  INTERNATIONAL  MINING  LAW 

not  only  the  passing  of  the  crude  and  uneconomical  amalgamation 
process,  but  the  rise  and  remarkable  growth  of  the  smelting  in- 
dustry, and  of  the  mechanical  concentration  of  ores  at  the  place 
of  their  production;  in  a  word,  of  the  firm  establishment  of  the 
metallurgical  industry.  In  this  respect  the  western  American 
mining  field  is  being  operated  at  the  present  time  under  better 
conditions  than  exist  in  any  other  part  of  the  mining  world. 


CHAPTER  VIII 

THE  BRITISH  AUSTRALASIAN  SYSTEM  OF  MINING  LAW.     DIGESTS 
OF  THE  MINING  LAWS  OF  NEW  SOUTH  WALES,  NEW  ZEA- 
LAND,   QUEENSLAND,    SOUTH    AUSTRALIA,    TASMANIA, 
VICTORIA,   AND    WEST   AUSTRALIA.     RESULTS   OF 
THE     SYSTEM.     STATISTICS     OF    PRODUCTION 
FROM  1851  TO  1916 

THE  BRITISH  AUSTRALASIAN  SYSTEM 

The  Australian  system  of  mining  laws  includes  those  of  New 
South  Wales,  New  Zealand,  Queensland,  South  Australia,  Tas- 
mania, Victoria  and  West  Australia,  and  they  resemble  each  other 
in  fundamentals  while  differing  markedly  in  detail.  The  metal 
industry  in  that  part  of  the  world  had  its  inception  in  the  dis- 
covery of  gold  in  1851  in  New  South  Wales,  which  was,  at  the 
time,  a  convict  colony  of  the  British  Empire.  When  the  event 
became  generally  known  the  stampede  from  all  parts  of  the  world 
to  the  new  El  Dorado  rivalled  that  which  was  at  the  time  in  full 
swing  towards  California,  where  the  precious  metal  had  been 
found  four  years  previously,  and  in  which  many  Australians  had 
taken  part.  Quite  a  number  of  these  returned  immediately  to 
the  island  continent,  carrying  with  them  not  only  the  mining 
experience  gained  in  California,  but  the  free  spirit  and  ways  of 
the  American  pioneer,  and  an  acquaintance  with  the  code  of 
mining  laws  that  had  been  established  by  them  to  govern  opera- 
tions in  a  land  where  no  laws  on  the  subject  were  in  existence. 
As  those  laws,  in  both  spirit  and  practice,  were  extremely  favour- 
able to  the  individual  worker,  who  constituted  then  almost  the 
entire  body  of  the  new  American  state,  they  were  adopted  almost 
without  change  in  the  new  Australian  community,  and  remained 
in  force  there  until  1866,  by  which  time  many  agricultural  and 

115 


116  INTERNATIONAL  MINING  LAW 

commercial  communities  had  been  established,  and  had  acquired 
enough  population  to  outbalance  that  of  the  mining  centers. 
When  this  condition  was  reached  the  natural  conservatism  of  the 
British  temperament  moved  towards  a  revision  of  the  laws  to 
bring  them  more  in  line  with  the  system  of  land  tenure  in  effect 
in  the  older  coun.try  and  the  abolition  of  that  particular  feature  in 
the  American  code — the  apex  and  extralateral  right  doctrine — 
which  was  not  only  novel  but  rather  repugnant  to  English  ideas, 
and  which  there,  as  in  America,  had  resulted  in  much  litigation. 
When  making  these  changes  public  sentiment  went  to  the  other 
extreme  and  produced  a  group  of  mineral  acts  which  were  so 
ultra-conservative,  so  minutely  detailed,  and  so  carefully  pro- 
tective of  property  rights  that  little  room  was  left  for  the  exercise 
of  individual  initiative  and  enterprise.  In  consequence,  explora- 
tions in  the  sense  of  searching  for  the  indications  on  the  surface 
of  new  mineral  deposits  were  immediately  checked,  many  of  the 
class  of  wandering  pioneers  left  for  other  lands  where  they  hoped 
to  find  freer  conditions,  and  as  soon  as  the  wonderful  placer 
deposits  began  to  exhibit  signs  of  exhaustion  the  industry  gave 
indications  of  decline.  This  phase  has  persisted  with  occasional 
reactions,  and  at  the  present  time  throughout  the  great  island, 
whose  geological  structure,  so  far  as  known,  should  make  it  one 
of  the  most  productive  mineral  fields  of  the  world,  the  metal 
mining  industry  is  in  a  condition  of  stagnation  that  is  most  dis- 
couraging. Although  all  the  officials  of  the  province  have  en- 
deavored to  stem  the  current  by  offers  of  liberal  state  rewards 
for  new  discoveries,  and  liberal  tenders  of  state  help  in  mining- 
development  work,  the  metallic  output  does  not  increase  in 
quantity  as  it  should. 

In  all  the  political  units  of  British  Australasia  the  State  claims 
the  exclusive  ownership  of  deposits  of  the  metals,  both  precious 
and  base,  whether  occurring  upon  the  yet  vast  area  of  unoc- 
cupied public  lands,  or  upon  privately  owned  tracts  (with  certain 
small  exceptions  as  to  areas  alienated  before  given  dates,  and 
certain  others  dedicated  to  public  usage,  or  held  as  native  or 
forest  reserves),  and  will  not  grant  fee  simple  title  to  any  of  it 


BRITISH  AUSTRALASIAN  MINING  LAW  117 

for  mining  purposes.  Instead,  except  in  West  Australia,  it 
grants  first,  temporary  prospecting  areas  of  various  sizes  and 
under  various  conditions,  within  and  during  the  term  of  which 
the  holder  is  permitted  to  locate  claims  if  anything  of  value  is 
found;  second,  it  allows  the  location  of  a  great  variety  of  claims 
of  different  sizes  and  for  different  purposes  without  the  prelimi- 
nary step  of  taking  up  prospecting  areas,  which  may  be  held 
indefinitely  on  the  condition  of  reasonably  continuous  work  and 
the  payment  of  a  moderate  annual  tax,  which  claims,  at  the  option 
of  the  holders  thereof,  may  be  converted  at  any  time  into  long 
term  leases.  The  latter  are  renewable  once  in  the  ca«e  of  New 
South  Wales,  Queensland,  West  Australia  and  Tasmania,  and 
indefinitely  (at  the  discretion  of  the  authorities)  in  the  case  of 
Victoria.  In  South  Australia  and  New  Zealand  no  renewals  are 
granted. 

Prospecting  is  nowhere  free.  Licenses,  good  for  a  year,  and  for 
the  location  of  one  claim  only,  are  issued  by  Queensland,  South 
Australia,  Victoria,  West  Australia  and  Tasmania,  at  costs 
ranging  from  two  shillings  and  sixpence  to  ten  shillings,  while  in 
New  Zealand  the  license,  costing  five  shillings,  allows  the  holder 
to  locate  each  one  of  nine  different  kinds  of  claims.  In  Tas- 
mania only  one  license  at  a  time  may  be  held  by  the  prospector, 
and  it  must  be  for  a  specified  area.  Elsewhere  any  number 
may  be  taken  out  by  an  individual,  or  bought  from  others. 

These  licenses  cover  full  mining  and  realization  rights  in  New 
South  Wales,  Queensland,  South  Australia  and  Victoria.  In 
West  Australia  they  confer  only  the  privilege  of  the  inspection 
of  the  surface,  of  staking  claims  and  of  taking  away  assay  or 
display  samples,  and  no  mining  or  realization  is  permitted  until 
they  are  converted  into  leases.  In  New  Zealand  they  confer  full 
mining  rights  for  gold,  but  not  for  any  other  metal.  In  Tasmania 
the  right  to  excavate  and  sell  ore  found  can  only  be  secured  by 
taking  out  an  additional  license  called  a  "Miner's  Right,"  which 
costs  five  shillings  per  year  and  is  indefinitely  renewable  annually 
at  the  same  cost. 

All  claims  are  transferable  after  recording,   and  the  acts  of 


118  INTERNATIONAL  MINING  LAW 

staking  and  recording  are  simple,  effective,  and  inexpensive, 
excepting  in  Victoria  and  New  Zealand,  where  they  are  rather 
elaborate,  and  in  New  South  Wales,  where  they  are  rather  ex- 
pensive from  the  point  of  view  of  the  miner. 

Leasehold  terms  range  from  15  years  (renewable  indefinitely) 
in  Victoria,  to  63  years  in  New  Zealand,  and  are  good  only  for 
the  metal  or  metals  specified  in  the  document,  excepting  in 
Tasmania,  where  they  are  good  either  for  gold  alone,  or  for  all 
other  metals  except  gold. 

Claims  and  leases  are  maintained  in  force  by  the  annual  pay- 
ment in  advance  of  a  rental  ranging  in  amount  for  the  precious 
metals  from  zero  per  acre  in  New  Zealand  and  one  shilling 
in  South  Australia,  up  to  one  pound  per  acre  in  Queensland,  and 
smaller  amounts  for  the  other  metals,  except  in  New  Zealand 
and  Victoria  where,  curiously  enough,  the  rates  are  higher  for  the 
base  metals. 

British  Australasia  has  never  had  to  contend  with  a  native 
population  of  assumed  intellectual  inferiority  as  has  South 
Africa.  The  Australian  and  Tasmanian  aborigine,  like  the  red 
Indian  of  America,  would  not  work;  while  the  New  Zealand 
native,  being  a  Polynesian  of  the  best  class,  was  not  only  a  good 
worker  but  proved  to  be  so  close  to  the  white  man  in  color  and 
intelligence  that  no  invidious  distinction  has  arisen  between 
them.  It  is  therefore  not  beneath  the  dignity  of  the  Briton 
there  to  work  with  his  hands,  and  labor  is  no  more  the  badge  of  a 
caste  there  than  in  America  or  Canada.  Hence,  if  the  mining 
laws  permitted  the  free  exercise  of  that  line  of  activity  which  has 
to  do  with  the  search  for  deposits  of  the  metals,  and  gave  the 
discoverer  the  chance  to  enjoy  the  normal  reward  of  his  labor, 
prospectors  would  surely  be  attracted  by  the  great  opportunities 
offered. 

NEW  SOUTH  WALES 
(Law  of  1906  with  amendments  to  January  1st,  1917) 

A  Prospecting  and  Mining  License  is  required.  The  document 
is  known  as  a  "Miner's  Right."  It  costs  five  shillings  per  year, 


BRITISH  AUSTRALASIAN  MINING  LAW  119 

and  is  renewable  annually  up  to  a  total  of  20  years.  Any  num- 
ber may  be  taken  out  by  an  individual  of  legal  age  if  capable  of 
citizenship.  Each  license  is  good  for  the  location  of  one  claim 
of  each  of  the  nine  classes  recognized  by  the  law,  as  hereinafter 
specified,  is  transferable  by  endorsement,  and  confers  possessory 
title  to  all  claims  acquired  by  virtue  of  it,  as  long  as  it  is  kept  in 
force,  and  as  long  as  the  Rules  and  Regulations  of  the  Mining 
Acts  are  complied  with  and  provides  for  the  exercise  of  all  neces- 
sary rights  of  mining  activity  thereon  and  therein;  also  of  locating 
one  residence  area  (with  surface  rights  only)  not  to  exceed  one- 
quarter  of  an  acre  if  within  the  boundaries  of  a  town,  or  two 
acres  if  outside. 

The  Law  recognizes  the  following  classes  of  claims,  all  of  which 
are  called  "tenements:" 

Class  1. 

Alluvial  Prospecting  Areas 600  by  600  to  1400  by  1400  feet 

Quartz  Prospecting  Areas '.  400  by  480  to    400  by    960  feet 

Mineral  Prospecting  Areas 1320  by  1320  feet 

Opal  Prospecting  Areas 400  by    400  feet 

Class  2. 

Alluvial  Reward  Claim 300  by  300  to    700  by    700  feet 

Block  Alluvial  Claim . .   100  by  100  to    300  by   300  feet 

Extended  Alluvial  Claim 147  by  590  to    233  by    933  feet 

Sluicing  Claim , . 180  by  722  to    233  by    933  feet 

River  and  Creek  Claim 100  ft.  by  width  of  creek. 

Quartz  Reward  Claim 240  by  400  to    400  by    480  feet 

Ordinary  Quartz  Claim 60  by  400  feet 

Mineral  Reward  Claim 600  by  660  feet 

Opal  Reward  Claim 150  by  150  feet 

Ordinary  Mineral  Claim '. . .  417  by  417  feet 

Ordinary  Opal  Claim 100  by  100  feet 

Class  3. — Water  Rights  Claim.     No  specified  area. 

Class  4. — Dam  (Reservoir)  Site.     Five  acres. 

Class  5. — Races  (Ditches).     Ten  to  20  feet  on  each  side  of  channel. 

Class  6. — Machinery  Areas.     Two  Acres. 

Class  7. — Road  Claims.     Not  over  15  feet  wide. 

Class  8. — Tramway  Claims.     Not  over  15  feet  wide. 

Class  9. — Tunnel  Sites.     As  per  agreement  with  Warden  and  Minister. 


120  INTERNATIONAL  MINING  LAW 

A  holder  of  a  " Miner's  Right"  may  make  application  for 
authority  to  prospect  on  any  unoccupied  Crown  lands  to  the 
Minister  of  Mines,  who  thereupon  will  arrange  terms  of  area, 
time,  rental,  conditions  of  labor  and  all  other  necessary  matters 
with  applicant,  and  will  issue  exclusive  authority.  Rental,  and 
survey  fee  (if  necessary)  are  payable  in  advance.  Upon  the 
discovery  of  any  desirable  mineral  within  the  area  so  granted,  the 
discoverer  must  report  within  14  days  to  the  District  Warden,  who 
thereupon  reports  to  the  Minister  of  Mines.  The  latter  then,  at 
his  discretion,  calls  upon  the  discoverer  to  take  out  a  lease,  or  will 
allow  him  to  continue  his  prospecting  operations  for  a  longer 
period. 

On  all  classes  of  claims  except  prospecting  areas,  block  claims, 
and  residence  areas  outside  of  towns,  registration  is  required 
within  28  days  after  the  act  of  taking  possession.  It  is  effected 
at  the  office  of  the  Mining  Register  of  the  district  in  which  the 
property  lies.  At  this  function  the '" Miner's  Right"  must  be 
produced.  After  registration,  conveyancing  rights  are  complete. 

On  all  classes  of  claims  except  prospecting  areas,  block  claims, 
and  residence  areas,  the  act  of  taking  possession  consists  in  setting 
stakes  at  all  corners  of  the  claim,  one  of  which  is  called  the 
"datum"  stake.  On  this,  within  three  days  after  staking,  the 
claimant  must  post  a  notice  giving  his  name,  date  of  location, 
class  of  claim,  area  and  shape.  Simultaneously  a  copy  of  the 
same  must  be  posted  on  the  outside  of  the  office  of  the  Registrar, 
and  both  notices  must  be  kept  posted  until  registration  is  effected. 
Adverse  claimants  have  seven  days  after  this  act  of  posting  in 
which  to  file  adverse  claims. 

Registration  fee  for  all  classes  of  claims  is  2s.  6d. 

Registration  is  obligatory  on  the  following  classes  of  claims, 
Alluvial  Reward,  Extended  Alluvial,  Sluicing,  River  and  Creek, 
Quartz  Reward,  Ordinary  Quartz,  Block  Alluvial,  Mineral 
Reward,  Opal  Reward,  Water  Right,  Ditch  Right,  Reservoir 
Site,  Machinery  Site,  Road,  and  Tramway.  All  others  may  be 
registered,  if  claimant  so  desires. 

Surveys,  at  cost  of  claimant,  at  the  time  of  registration,  are 


BRITISH  AUSTRALASIAN  MINING  LAW  121 

obligatory  on  the  following  classes  of  claims:  Alluvial  Reward, 
Alluvial  Extended,  Sluicing,  Quartz  Reward,  Ordinary  Quartz, 
Mineral  Reward,  and  Machinery  Area.  On  other  classes  of 
tenements  surveys  are  at  the  option  of  the  claimant.  But  a 
survey  can  always  be  insisted  upon  by  the  authorities,  and  when 
not,  an  Inspection  Fee  of  10  shillings  ($2.50)  is  substituted.  Sur- 
vey costs  range  from  $5  on  claims  not  exceeding  one  acre  in  area, 
up  to  $50  on  claims  not  over  one  square  mile  in  area. 

Upon  prospecting  areas  at  least  one  competent  miner  must  be 
efficiently  employed  daily  (except  on  legal  holidays)  to  maintain 
the  claim  title. 

Mining  and  prospecting  claims  may  be  located  on  privately 
owned  lands  by  permission  of  the  District  Warden,  and  upon 
payment  to  the  surface  owner  of  such  an  amount  as  the  Warden 
may  decree.  But  no  such  permission  will  be  granted  upon  lands 
covered  with  buildings  or  reservoirs,  or  in  cultivation,  without 
the  consent  of  the  owner. 

Residence  areas  cover  only  surface  rights,  and  to  the  depth  of 
50  feet  thereunder. 

The  title  acquirable  through  the  exercise  of  the  "Miner's 
Right"  is  of  a  possessory  nature  only,  and  is  maintainable  only 
by  keeping  the  " Right"  in  force,  and  by  keeping  efficiently  at 
work  on  the  claim  to  the  satisfaction  of  the  District  Warden.  It 
may  be  converted  at  any  time  into  a  lease,  and  the  authorities 
have  the  right  to  insist  upon  the  conversion. 

Quartz  Prospecting  Areas,  Quartz  Reward  Claims,  and  Quartz 
Ordinary  Claims  are  supposed  to  be  located  only  on  well  defined 
veins  or  lodes  in  which  gold  is  the  principal  metal  expected  to  be 
recovered. 

Mineral  Prospecting  Areas,  Mineral  Reward  Claims  and  Ordi- 
nary Mineral  Claims  are  supposed  to  be  located  on  all  other 
kinds  of  underground  metalliferous  deposits. 

LEASES 

All  leases  are  grantable  or  refusable  at  the  discretion  of  the 
Governor-in-Council. 


122  INTERNATIONAL  MINING  LAW 

Survey  is  required  (at  cost  of  applicant)  unless  the  ground  has 
been  already  surveyed,  and  all  the  monuments  are  in  good  order. 

The  maximum  area  for  a  gold  mining  lease  is  25  acres. 

The  maximum  area  for  a  mineral  lease  for  other  metals  is  80 
acres. 

The  maximum  area  for  an  opal  lease  is  10  acres. 

Rental  for  leases  of  all  kinds  is  five  shillings  per  acre,  per 
annum,  payable  in  advance. 

All  leased  areas  must,  if  practicable,  be  parallelograms,  with 
lengths  not  greater  than  three  times  the  widths. 

The  maximum  term  of  a  lease  is  20  years,  which  may  be  re- 
newed once  for  a  second  term  of  equal  length. 

All  leases  are  liable  for  forfeiture  if  the  holder  mines  thereon  for 
metals  other  than  that  or  those  for  which  lease  was  granted. 

All  conditions  of  a  lease  otherwise  are  matters  of  arrangement 
between  the  applicant  and  the  Minister  of  Mines,  duly  advised 
by  the  District  Warden. 

Special  forms  of  leases,  to  cover  special  conditions  not  specified 
in  the  law,  are  obtainable  through  negotiations  with  the  Minister 
of  Mines.  When  application  is  made  for  same  a  fee  of  £10  is 
required,  in  addition  to  the  rental  in  advance. 

Preliminary  authority  to  enter  privately  owned  land  for  pros- 
pecting purposes  is  granted  for  any  term  not  to  exceed  12  months, 
with  right  for  an  extension  of  an  additional  12  months  if  desired. 

When  leases  are  asked  for  and  obtained  on  privately  owned 
land,  in  addition  to  the  rental  due  to  the  Government  a  second 
rental,  payable  quarterly  in  advance,  is  due  to  the  surface  owner, 
the  amount  of  the  same  to  be  determined  by  the  district  Warden. 

Labor  requirements  on  leases  are  as  follows : 

For  gold  claims,  not  less  than  one  man  per  five  acres  (or  frac- 
tion) for  the  first  12  months;  and  thereafter,  not  less  than  one  man 
per  two  acres.  For  other  metals,  not  less  than  one  man  per  20 
acres  for  first  12  months,  and  thereafter  not  less  than  one  man 
per  10  acres. 

Leases  for  dredging  purposes  are  obtainable  for  terms  of  20 
years,  renewable  once  for  an  equal  term,  at  an  annual  rental  of 


BRITISH  AUSTRALASIAN  MINING  LAW  123 

2s.  6d.  per  acre,  payable  in  advance.     If  on  privately  owned  land, 
on  a  rental  to  be  approved  by  the  Warden. 

ROYALTIES 

On  all  classes  of  claims,  whether  on  public  or  private  land,  and 
for  all  kinds  of  metals,  royalty  is  required  of  1  %  of  the  gross  value 
of  the  metal  recovered,  less  the  amount  of  rental  annually  paid. 
No  royalties  are  payable  to  surface  owners. 

All  producers  must  keep  books  of  account,  and  must  report 
fully  as  to  their  operations  between  January  1st  and  14th  of  each 
year  for  the  year  passed.  Further  reports  may  be  required  at 
any  time.  Full  •  inspection  by  Government  officials  at  any 
reasonable  hour  must  be  allowed. 

NEW  ZEALAND 
(Law  of  1908,  with  amendments  to  date  of  January  1st,  1917) 

All  Crown  lands  not  already  occupied  for  mining  or  other  pur- 
poses are  open  to  application  for  mining  privileges;  also  all  lands 
sold  under  the  Act  of  1908  known  as  "The  Land  for  Settlement" 
Act;  also  all  land  disposed  of  in  any  way  under  the  Land  Act  of 
1892  or  amendments  thereto.  But  the  Governor  has  the  power, 
from  time  to  time,  and  after  due  notice  in  the  official  Govern- 
ment Gazette,  to  withdraw  any  portions  of  the  Crown  lands  from 
mining  privileges. 

Prospecting  is  not  free.  A  form  of  permit  called  a  "Miner's 
Right"  is  required  to  be  in  the  possession  of  all  who  engage  in  the 
business  on  their  own  account.  Such  permits,  good  for  12 
months  from  date  of  issue,  may  be  purchased  by  any  individual 
of  either  sex  over  the  age  of  14  years,  and  in  any  desired  number, 
at  a  cost  of  five  shillings  each  (except  in  the  case  of  permits  giving 
rights  on  Native  ceded  lands, when  the  cost  is  20  shillings),  from 
any  Postmaster  or  District  Warden.  They  are  not  transferable. 
They  confer  the  right  to  take  up  one  alluvial  claim,  and  to  buy 
any  number  of  such  from  legal  holders  thereof;  and  to  prospect  on 
Crown  lands  (or  on  Native  ceded  land  if  the  "Right"  is  of  that 


124  INTERNATIONAL  MINING  LAW 

kind)  for  any  metal  or  mineral.  The  law  also  provides  for  the 
sale  to  anyone  legally  entitled  to  purchase  one  or  more  single 
"  Miner's  Rights/'  a  permit  called  a  "  Consolidated  Miner's 
Right/'  which  consists  of  any  desired  number  of  single  "  Miner's 
Rights/'  and  costs  a  sum  equal  to  the  aggregate  of  the  cost  of  all 
the  " Rights"  therein.  When  such  a  document  is  taken  out  for 
the  benefit  of  a  mining  partnership,  the  name  of  each  partner 
must  appear  upon  it;  otherwise,  only  the  name  of  the  actual 
purchaser.  This  also  is  good  for  twelve  months  only.  Both 
of  these  forms  of  permit  may  be  renewed  annually  indefinitely,  at 
the  same  cost  as  that  of  the  original  issue. 

Two  other  forms  of  prospecting  permits  are  obtainable,  one  of 
which  is  called  a  " Prospecting  Warrant,"  and  the  other  a  "Pros- 
pecting License."  These,  when  covering  privileges  on  Native 
ceded  land,  are  issued  only  by  the  Governor,  and  when  on  other 
lands,  by  the  District  Wardens,  and  at  their  discretion.  The 
"Warrant"  is  a  non-exclusive  right,  while  the  "License"  is  an 
exclusive  one,  covering  rights  only  on  the  particular  area  de- 
scribed by  it. 

Again,  these  "Prospecting  Licenses"  are  of  two  kinds,  called 
respectively  "Ordinary  Prospecting  Licenses"  and  "Tunnel 
Prospecting  Licenses."  The  former  applies  to  prospecting  gen- 
erally, and  the  latter  to  prospecting  along  the  line  of  a  tunnel 
which  the  licensee  is  driving. 

When  a  "Prospecting  Warrant"  is  used,  no  staking  of  claims 
or  areas  is  required,  but  when  operating  under  a  "Prospecting 
License"  the  ground  must  be  staked,  and  a  survey  may  be 
required  if  two  or  more  individuals  are  operating  close  together. 

The  area  of  land  to  which  a  "Tunnel  Prospecting  License" 
may  relate  cannot  exceed  450  feet  on  each  side  of  the  center  line 
of  the  tunnel  along  the  whole  length  thereof,  but  in  no  case  can  it 
include  any  river,  or  river  channel.  The  area  pertaining  to  an 
"Ordinary  Prospecting  License"  is  100  acres  or  less. 

The  "Prospecting  Warrant"  and  "Ordinary  Prospecting 
License"  are  good  for  12  months  and  are  not  renewable;  but  on 
their  expiry  the  holder  may  make  a  fresh  application.  A  "Tun- 


BRITISH  AUSTRALASIAN  MINING  LAW  125 

nel  Prospecting  License"  has  a  life  of  two  years,  and  may  be 
renewed  thereafter  from  year  to  year  indefinitely. 

The  cost  of  a  " Prospecting  Warrant"  is  20  shillings,  and  of  an 
''Ordinary  Prospecting  License"  one  shilling  per  acre  of  land  to 
which  it  relates,  but  in  no  case  not  less  than  20  shillings.  In 
both  cases  the  fee  is  payable  in  advance,  and  in  the  case  of  a 
" Tunnel  Prospecting  License"  annually  in  advance,  while  the 
license  or  its  renewal  is  in  force. 

Prospecting  permits,  warrants,  and  licenses  of  all  kinds  are 
issued  under  the  condition  of  vigorous  and  practically  continuous 
prosecution  of  exploration  to  the  satisfaction  of  the  District 
Warden,  to  whom  also  must  be  reported  promptly  all  discoveries 
made ;  also  the  filling  up  of  all  excavations  made  that  are  not  to  be 
used  in  the  permanent  working  of  the  ground.  When  operations 
are  to  be  carried  on  upon  privately  owned  land,  satisfactory  secu- 
rity must  be  given  to  the  Warden  or  Governor  to  cover  any  dam- 
ages that  might  ensue.  Areas  exempted  from  prospecting  are 
those  enclosed  and  cultivated  or  used  for  residential  purposes, 
cemetaries  and  parks  (public  and  private);  privately  owned 
areas  whose  owners  are  themselves  conducting  explorations  for 
mineral,  or  are  mining;  and  within  100  feet  of  any  spring,  arti- 
ficial reservoir,  dam,  ditch  or  water  works. 

Still  another  form  of  prospecting  permit  is  obtainable,  which  is 
called  a  "  Mineral  Prospecting  Warrant."  It  may  be  secured 
from  the  District  Warden,  or  the  Commissioner  of  Crown  Lands 
acting  under  the  permission  of  the  Minister  of  Mines.  It  grants 
exclusive  right  to  search  for  any  one  specified  mineral  over  a 
definitely  delimited  area  of  Crown  land  not  to  exceed  10,000 
acres  in  extent,  is  good  for  five  years,  and  costs  £50  for  the  first 
1000  acres,  and  £25  for  each  subsequent  1000  acres  or  fraction 
thereof,  payable  in  advance.  In  addition,  an  annual  rental  of  one 
penny  per  acre  for  the  first  and  second  year,  twopence  for  the 
third,  threepence  for  the  fourth,  and  sixpence  for  the  fifth.  At 
any  time  within  the  term  the  Warrant  may  be  converted  into  a 
lease  for  not  to  exceed  1000  acres  in  one  contiguous  block,  on 
payment  of  £1  per  acre.  The  term  is  63  years  or  less,  and  the 


126  INTERNATIONAL  MINING  LAW 

rental  is  2s.  6d.  per  acre  per  annum.  In  addition,  a  royalty  of 
4%  of  the  value  of  the  mineral  at  the  mine  is  collected.  But, 
when  the  royalty  in  any  one  year  exceeds  the  amount  of  the 
rental,  the  latter,  for  that  year,  is  remitted. 

All  forms  of  prospecting  permits  heretofore  mentioned,  except- 
ing the  one  called  "  Mineral  Prospecting  Warrant,"  are  assumed 
by  the  law  to  be  utilized  only  for  searching  and  exploring,  and  do 
not  convey  the  right  to  produce  metals  or  ores,  or  to  realize  on 
the  same  in  any  way.  But  when  such  substances  are  found,  and 
appear  to  exist  in  payable  quantity,  the  prospector  is  supposed 
at  once  to  file  claims  upon  his  discovery,  and  to  have  the  exclusive 
right  to  do  so.  Claims  are  of  five  kinds,  to  wit:  Alluvial,  Dredg- 
ing, River,  Quartz,  and  Sea  Beach. 

In  general,  and  when  not  impracticable,  all  claims  must  be 
four-sided  (but  not  necessarily  rectangular),  with  no  one  side  ex- 
ceeding twice  the  length  of  any  other  side.  When  this  rule  is 
impracticable  or  unreasonable,  it  may  be  set  aside  with  the  con- 
sent of  the  District  Warden. 

Each  one  of  the  above  mentioned  classes  of  claims  may  be  of 
three  kinds,  to  wit:  Ordinary,  Extended,  and  Special. 

Ordinary  claims  are  generally  one  acre  or  less  in  area,  but  in 
each  case  to  which  they  apply  there  are  numerous  exceptions, 
provisos  and  variations,  depending  for  the  most  part  on  local 
topographic  conditions,  and  also  to  a  minor  degree  on  the  classi- 
fication of  land  upon  which  the  claim  is  located ;  that  is,  whether 
it  be  Crown,  Native,  Native  ceded,  Private,  or  Reserve. 

Extended  claims  are  generally  five  acres  or  less  in  extent,  with 
also  several  exceptions  and  variations. 

Special  claims  may  be  of  any  size,  up  to  100  acres. 

In  all  these  cases  the  applicant  for  ground  may  locate  any 
area  desired  so  long  as  he  does  not  exceed  the  above  mentioned 
maxima;  and  also  as  many  of  them  as  may  be  represented  by 
the  ''Miner's  Rights"  he  holds. 

In  staking,  substantial  posts  or  piles  of  stones  must  be  set  at 
each  corner,  and  trenches  dug,  or  finger  posts  set  up  on  each 
stake  indicating  the  direction  to  the  next  corner. 


BRITISH  AUSTRALASIAN  MINING  LAW  127 

Labor  requirements  for  the  maintenance  of  title  to  claims  be- 
gins very  shortly  after  the  act  of  staking;  within  48  hours  in  the 
case  of  the  Ordinary  Alluvial,  within  14  days  in  the  case  of  an 
Extended  Alluvial,  and  in  the  case  of  a  Special  claim  within  the 
period  set  by  the  Warden  in  granting  it.  In  regard  to  amount, 
at  least  one  legal  shift  (eight  hours)  per  24,  per  legal  working 
day,  must  be  applied  on  Ordinary  and  Extended  claims,  and  at 
least  two  shifts  on  Special  claims.  Numerous  conditions,  such 
as  acreage  and  age  of  claim,  and  class  of  land  upon  which  it  is 
filed,  increase  the  amounts  required.  On  Mineral  Prospecting 
Warrants  work  must  begin  within  three  months  from  date  of 
issue,  and  at  least  the  labor  of  two  men  for  one  legal  shift  per 
legal  working  day  per  100  acres  of  area  is  required.  On  Mineral 
Leases  work  must  begin  within  six  months.  During  the  succeed- 
ing 18  months  at  least  one  workman  per  10  acres  per  legal  working 
day  is  required;  thereafter,  two  workmen  per  10  acres. 

The  registration  of  Ordinary  claims  does  not  seem  to  be  obliga- 
tory, but  the  transfer  or  conveyance  of  a  part  or  all  of  such  a 
privilege  is  not  legal  unless  registered,  and  registration  of  the 
same  will  be  refused  unless  the  privilege  itself  is  registered.  Con- 
sequently, it  is  the  general  custom  to  register  very  shortly  a'fter 
the  receipt  by  the  claimant  of  the  certificate  which  evidences 
them.  Registration  fees  are  moderate. 

As  soon  as  Ordinary  claims  are  staked,  and  all  provisions  of  the 
law  in  relation  thereto  are  complied  with,  the  production  of  gold 
therefrom  may  begin,  and  may  be  continued  indefinitely  there- 
after without  payment  of  fees,  dues,  taxes,  royalties  or  any 
government  imposts  of  any  kind,  so  long  as  the  title  is  kept  valid 
by  the  annual  renewal  of  the  " Miner's  Right"  on  which  it  is 
based,  and  the  performance  of  the  labor  conditions  prescribed 
by  the  Regulations  that  are  from  time  to  time  promulgated  by 
the  Minister  of  Mines  and  his  subordinate  officials.  But  no 
other  mineral  or  metal  than  gold  may  be  recovered  or  taken 
possession  of. 

On  Extended  and  Special  claims  an  annual  fee  per  acre  or 
fraction  thereof  is  due  and  payable  in  advance,  which  varies  from 


128  INTERNATIONAL  MINING  LAW 

one  shilling  to  7s.  6d.,  according  to  conditions  determined  mainly 
by  the  age  of  the  claim,  and  the  status  of  the  land  on  which  it  is 
located. 

Ample  regulations  exist  in  the  law  for  the  acquisition  of  water 
and  timber-cutting  privileges,  mill,  smelter,  residence  and  work- 
shop sites,  and  for  all  other  purposes  properly  pertaining  to  the 
occupation  of  mining,  and  on  reasonable  terms. 

A  mining  claim  is  considered  to  have  been  abandoned  if  the 
rent,  royalty  or  li cense  fee  is  in  default  for  twelve  months;  or 
when  for  any  continuous  period  of  one  month  it  has  been  entirely 
unused  for  its  proper  purpose;  if  there  are  buildings  and  machin- 
ery upon  it,  the  period  is  three  months. 

All  mining  privileges  are  regarded  legally  as  chattel  interests, 
and  may  be  sold,  ineumbered,  transmitted,  seized  under  writ  for 
execution,  or  otherwise  disposed  of. 

No  royalty,  rental,  claim  license  or  other  dues  are  imposed  by 
the  State  on  the  production  of  gold. 

On  the  other  hand,  no  form  of  mining  privilege  capable  of 
being  issued  under  the  law  permits  the  holder  thereof  to  mine, 
produce,  take  possession  of,  or  realize  upon  any  other  metal  or 
mineral  that  may  be  found,  unless  the  privilege  under  which  he 
is  operating  specifically  grants  the  right  to  mine  the  same;  and 
further,  until  that  right  has  been  embodied  in  a  lease  from  the 
State,  issued  from  the  office  of  the  Minister  of  Mines,  and  in  the 
form  and  under  the  conditions  prescribed  by  the  law,  and  amend- 
ments thereto. 

Any  form  of  prospecting  license  may  be  converted  at  any  time 
into  Mineral  Licenses  giving  the  right  to  work  for  a  specified 
metal  or  mineral  other  than  gold. 

A  Mineral  License  cannot  exceed  320  acres  in  area,  and  the 
rental  is  2s.  6d.  per  acre  per  annum  in  advance.  The  government 
also  reserves  the  right  to  impose  a  royalty  that  may  not  be  less 
than  1%  nor  more  than  4%  on  the  value  of  the  product  at  the 
mine.  But  all  sums  paid  as  royalty  in  any  one  year  may  be 
applied  as  a  reduction  of  the  rental  due  at  the  beginning  of  the 
next  year. 


BRfTISH  AUSTRALASIAN  MINING  LAW  129 

QUEENSLAND 

(Law  of  1898,  with  amendments  to  January  1st,  1917) 

The  State  claims  the  exclusive  ownership  of  gold  wherever 
found  within  its  territory;  and  of  silver,  except  on  certain  tracts 
alienated  in  accordance  with  the  provisions  of  Sec.  22  of  the 
Crown  Land  Alienation  Act  of  1860,  with  Sec.  32  of  the  Crown 
Land  Alienation  Act  of  1868,  and  with  Sec.  21  of  the  Mineral 
Lands  Act  of  1872;  also  of  Copper,  Tin,  Opal  and  Antimony, 
excepting  on  lands  alienated  in  fee  simple  prior  to  December 
29th,  1909.  Coal,  on  public  lands,  and  also  on  lands  subject  to 
the  " Agricultural  Lands  Special  Purchase  Act"  of  1901  is  also 
exclusively  the  property  of  the  State.  Finally,  all  other  metals 
and  minerals  occurring  on  public  land  or  on  private  property, 
excepting  where  the  latter  has  been  alienated  in  fee  simple  prior 
to  December  29th,  1909,  are  the  exclusive  property  of  the 
State. 

The  State  will  not  sell  its  mineral  rights,  but  does  allow  the 
filing  of  mining  claims  upon  them,  and  protects  such  locators  while 
prospecting  and  development  work  is  being  conducted  thereon, 
and  when  such  claimants  are  ready  to  begin  production  it  provides 
for  the  conversion  of  their  claims  into  leases  for  given  terms  of 
years,  at  stated  rentals  and  royalties  as  hereinafter  detailed. 

Prospecting  is  not  free.  A  license,  called  a  "  Miners'  Right " 
is  required.  This  document  is  issued  to  any  individual  not  of 
Asiatic,  African,  or  Polynesian  birth  or  ancestry,  for  any  period 
up  to  10  years,  on  payment  of  a  sum  at  the  rate  of  five  shillings 
for  every  year  for  which  the  license  is  to  be  in  force.  It  is  not 
transferable.  Any  number  of  these  may  be  purchased  by  an 
individual.  Another  form  of  the  same  document,  called  a 
"Consolidated  Miners'  Right,"  is  purchasable  by  individuals, 
partnerships,  corporations,  etc.,  good  for  any  part  or  the  whole 
of  said  maximum  term,  and  costs  a  sum  per  year  of  the  term 
equal  to  tne  number  of  names  upon  it  multiplied  by  five  shillings. 

A  holder  of  either  one  of  these  forms  of  " Right"  has  the  privi- 
lege of  prospecting  and  exploring  on  public  land,  locating  claims 


130  INTERNATIONAL  MINING  LAW 

and  mining  thereon;  also  of  acquiring  mining  property  under 
lease  direct,  or  by  purchase  from  others,  or  of  converting  claims 
into  leases;  all  this,  however,  only  when  operating  strictly  in 
accordance  with  the  provisions  of  the  law,  and  the  regulations 
thereunder. 

When  mining  claims  and  leases  are  so  acquired,  registered, 
and  maintained  in  force,  conveyancing  rights  on  the  same  are 
complete,  except  that  the  grantee  in  each  case  must  also  be  the 
holder  of  a  Miner's  Right  or  of  as  many  of  them,  in  single  or 
consolidated  form,  as  the  number  of  claims  to  which  the  title  is 
passed. 

All  property  acquired  by  virtue  of  a  Miner's  Right  is  deemed  to 
be  a  chattel  interest,  in  the  common  law  meaning  of  the  term. 

Miner's  Rights  are  renewable  at  the  date  of  their  expiry  on  the 
same  terms  as  those  upon  which  they  were  first  purchased. 

From  all  mining  claims  properly  located  and  maintained,  and 
from  all  mining  leases  secured,  the  holder  thereof  is  entitled  to 
the  absolute  possession  of  all  gold  and  other  metals  (precious  or 
base)  and  minerals,  recovered  and  won  therefrom  in  legal  and 
proper  ways. 

However,  as  a  necessary  antecedent  to  the  location  of  claims 
on  public  land,  the  region  must  be  a  proclaimed  goldfield,  from 
which  rule  there  is  no  variation,  except  in  the  case  of  the  first 
discovery  made  upon  unproclaimed  land. 

When  such  a  discovery  is  made,  the  discoverer  is  required  to 
report  the  same  in  writing  at  once  at  the  office  of  the  nearest 
District  Warden,  and  such  report,  when  posted  on  the  outside 
of  the  office  of  the  Warden,  has  the  effect  of  a  temporary  or  pro- 
visional proclamation  of  a  goldfield  in  the  shape  of  a  square  area, 
the  boundary  lines  of  which  run  towards  the  cardinal  points  of 
the  magnetic  compass,  the  sides  being  each  a  mile  in  length  and 
so  placed  as  to  locate  the  discovery  in  the  approximate  center  of 
the  area.  But  before  posting  such  notice  the  Warden  must 
examine  the  find,  and  decide  whether  it  is  of  sufficient  importance 
to  warrant  such  a  provisional  proclamation,  and  it  is  within  his 
power  to  refuse  the  posting.  If  it  is  allowed,  the  matter  goes  to 


BRITISH  AUSTRALASIAN  MINING  LAW  131 

the  Minister  of  Mines  who,  at  his  discretion,  may  accept  the  deci- 
sion of  the  Warden,  and  formally  proclaim  the  area,  or  he  may 
defer  action  until  he,  or  some  officer  appointed  by  him  for  the 
purpose,  has  examined  and  reported  upon  the  discovery.  If  this 
report  is  unfavorable,  the  provisional  proclamation  is  formally 
cancelled  and  the  claim  of  the  discoverer  disallowed.  If  it  is 
favorable,  the  region  is  formally  proclaimed  a  Public  Digging. 

It  is  in  the  power  of  the  Governor  to  pay  to  the  recognized 
discoverer  of  a  new  goldfield,  a  cash  reward  of  £500,  if  the  dis- 
covery is  located  20  miles  or  more  from  any  other  workings,  and 
if  there  are  at  work  there,  within  four  months  after  the  discovery, 
200  or  more  miners.  Or,  if  there  are  500  miners  at  work  there  at 
the  end  of  six  months,  the  reward  is  £1000. 

A  holder  of  a  Miner's  Right  may  locate  and  operate  any  desired 
number  of  unit  claims,  so  long  as  the  same  are  worked  as  pre- 
scribed by  the  law  and  the  regulations  thereunder. 

The  process  of  location  consists  of  setting  substantial  posts  or 
monuments  at  each  corner,  and  the  cutting  of  direction  trenches 
at  their  bases.  Registration  is  obligatory  within  seven  days  of 
staking.  Work  must  begin  within  seven  days  thereafter. 

The  sizes  of  prospecting  areas  for  gold  are  as  follows:  If 
outside  the  limits  of  a  proclaimed  Public  Digging,  400  yards 
square.  If  within  such  limits  and  distant  three  miles  or  more 
from  the  nearest  operating  mine,  300  yards  square.  If  distant 
from  one  to  three  miles,  200  yards  square.  If  distant  between 
400  yards  and  a  mile  from  the  same,  150  yards  square.  No 
prospecting  area  is  allowable  nearer  than  400  yards  to  an  opera- 
tion mine. 

The  sizes  of  prospecting  areas  for  any  metal  or  mineral  other 
than  gold  or  coal  are  as  follows:  If  outside  of  the  limits  of  a 
proclaimed  mineral  field,  160  acres.  If  within  such  limits,  and 
distant  10  miles  or  more  from  the  nearest  operating  mine,  40 
acres.  If  distant  between  five  and  10  miles,  20  acres.  If  distant 
between  one  and  five  miles,  10  acres.  No  prospecting  area  is 
allowable  within  one  mile. 

All  such  prospecting  areas  must  be  staked  off  as  a  square  block, 


132  INTERNATIONAL  MINING  LAW 

with  substantial  posts  at  each  corner,  and  at  a  conspicuous  point 
within  the  lines  a  notice  must  be  posted  giving  name  or  names  of 
claimants,  the  number  and  date  of  their  Rights  and  the  date  of 
location.  Registration  must  take  place  within  seven  days,  and 
must  be  renewed  monthly.  Such  re-registration,  however,  may 
be  refused  at  the  discretion  of  the  District  Warden,  who  may  in 
lieu  thereof  demand  that  the  prospectors  stake  off  a  claim  or 
claims,  or  take  out  a  lease. 

Labor  requirements  on  a  prospecting  area  of  either  kind  are  the 
labor  of  not  less  than  one  man  for  one  legal  shift  (eight  hours)  per 
legal  working  day,  Sundays  and  holidays  excepted. 

Report  of  the  discovery  of  payable  ore  must  be  made  within  14 
days,  whereupon  the  Warden  must  examine  the  prospect  as  soon 
as  possible,  and  if  in  his  opinion  it  is  promising,  he  is  authorized  to 
allot  the  proper  number  of  claims  to  the  discoverers,  and  also,  in 
addition,  a  prospecting  claim  of  dimensions  varying  in  size  in 
accordance  with  his  view  of  the  comparative  importance  of  the 
find.  If  on  such  claims  minerals  other  than  gold  or  coal  are 
found  they  must  be  reported  to  the  Warden  within  14  days,  who, 
after  examination,  if  in  his  opinion  the  discovery  is  of  sufficient 
importance,  will  allot  a  mineral  prospecting  area  to  the  discoverer 
or  discoverers,  and  register  the  same  in  their  name.  Labor 
conditions  on  such  areas  are  the  same  as  on  .a  gold  prospecting 
area. 

The  size  of  an  ordinary  gold-reef  claim  is  50  by  400  feet,  the 
first  dimension  to  be  laid  off  along  the  strike  of  the  reef.  The  tract 
must  be  rectangular  in  shape,  and  such  part  of  the  width  as  the 
locator  may  desire  may  be  laid  off  on  either  side  of  the  line  of 
strike.  Ten  of  such  claims,  adjoining,  may  be  taken  up  as  a 
block  by  an  association  of  names,  each  being  the  holder  of  a 
Miner's  Right.  Until  such  a  claim  or  block  of  claims  has  become 
payable,  the  labor  conditions  affecting  maintenance  are  the 
same  as  hereinbefore  stated.  When  production  begins  the  re- 
quirement is  the  labor  of  one  man  per  legal  day,  per  50  feet  along 
the  reef.  Registration  is  obligatory  within  seven  days  after 
staking.  There  are  no  extralateral  rights. 


BRITISH  AUSTRALASIAN  MINING  LAW  133 

The  unit  alluvial  claim  is  a  rectangle  measuring  100  by  50  feet, 
but  in  wet  or  rocky  ground  where  shaft  sinking  is  necessary  the 
unit  is  100  by  100  feet.  All  such  claims  are  to  be  registered  as 
soon  as  their  boundaries  are  defined  to  the  satisfaction  of  the 
Warden.  The  labor  requirements  are  one  shift  per  legal  working 
day.  Various  other  sized  claims  of  the  alluvial  class  are  specified 
by  the  law  as  allowable,  such  as  river  or  creek,  puddling,  aurifer- 
ous sand,  prospecting,  extended  hydraulic,  dredging,  amalga- 
mated, etc.,  some  depending  upon  the  method  of  operation,  and 
others  upon  topographical  conditions,  nature  of  gravel,  etc.  All 
require  registration  and  labor  conditions  similar  to  those  already 
mentioned.  In  the  case  of  dredging  areas  a  rental  of  2s.  6d. 
per  acre  per  annum  is  required,  payable  in  advance. 

The  law  also  makes  ample  provisions  for  water,  ditch,  and 
reservoir  sites,  for  machinery,  tramway  and  tailings  areas,  and  for 
business,  residence  and  garden  tracts.  For  all  of  these  an  acreage 
rental  is  payable  in  advance  in  various  reasonable  sums.  Regis- 
tration of  all  such  claims  is  obligatory,  and  surveys  at  the  claim- 
ant's expense  may  be  required  by  the  Warden. 

LEASES 

The  conversion  of  claims  into  leases  is  not  obligatory,  but  is 
desirable  and  is  generally  effected  as  soon  as  it  becomes  evident 
that  the  property  has  become  valuable.  These  franchises  are  of 
two  kinds,  namely,  Gold  Mining  Leases  and  Mineral  Leases. 

The  Gold  Mining  Lease  confers  the  right  to  work  for  gold  only. 
Its  area  cannot  exceed  50  acres,  and  its  term  21  years,  renewable 
once.  The  rental  is  £1  per  acre  per  annum  in  advance.  There 
are  numerous  exceptions  and  provisos  to  these  standard  figures 
depending  upon  various  conditions.  Maintenance  is  based  upon 
reasonably  continuous  usage,  and  compliance  with  the  prescribed 
regulations  of  the  law. 

The  Mineral  Lease  conveys  the  right  to  work  only  for  such 
metals  or  minerals  as  are  specified  in  the  document,  and  its 
details  are  largely  a  matter  of  bargain  between  the  applicant  and 


134  INTERNATIONAL  MINING  LAW 

the  government  officials  in  charge  of  the  business,  excepting  as  to 
certain  fundamentals,  such  as  the  area,  which  cannot  exceed  160 
acres  (except  in  the  case  of  coal  mines  where  a  larger  grant  is 
made);  the  term,  which  is  21  years  with  the  right  of  one  renewal 
of  equal  length;  and  the  rental,  which  is  10  shillings  per  acre  per 
annum,  payable  in  advance,  excepting  again  in  the  case  of  coal, 
where  a  lower  rental  is  provided. 

No  Mineral  Lease  covers  the  production  of  gold.  If  tnat  metal 
is  found,  and  it  is  the  desire  of  the  leaseholder  to  work  for  it  in 
connection  with  any  other  metal  that  he  may  be  producing,  a 
special  license  to  that  effect  must  be  procured.  The  same  rule 
also  applies  to  any  other  metal  or  mineral  that  may  from  time  to 
time  be  found,  other  than  those  specified  in  the  contract.  In  the 
case  of  gold,  when  recovered  from  the  ores  of  a  mineral  lease,  the 
government  imposes  a  royalty  of  1%  of  the  gross  value  of  the 
output  of  that  metal. 

MINING  ON  PRIVATE  LAND 

No  mining  is  allowed  on  improved  private  land,  nor  within  150 
yards  of  the  same;  nor  if  it  is  less  than  one-half  an  acre  in  area  and 
lies  within  the  limits  of  a  township,  unless  the  consent  of  the 
owner  is  obtained,  and  unless  the  right  granted  exempts  the  sur- 
face and  a  certain  distance  below  it  (as  arranged  by  the  Warden) 
from  all  operations. 

To  enter  any  private  land  for  purely  prospecting  purposes,  a 
written  permit  must  be  obtained  from  the  Warden.  Such  a 
permit  may  be  given  for  an  area  not  to  exceed  640  acres,  for  a 
term  not  more  than  30  days,  and  in  consideration  of  a  deposit 
of  20  shillings  to  compensate  the  owner  for  possible  damage  to 
the  premises  during  the  search,  which  must  be  confined  simply 
to  looking  over  the  surface.  This  sum  is  returnable  to  the  permit 
holder  if  no  damage  occurs,  otherwise  it  is  payable  in  whole  or 
in  part  to  the  owner  of  the  land.  Only  one  such  permit  is 
obtainable  at  the  same  time  for  the  same  tract  of  land,  and  it 
cannot  include  more  than  five  individuals.  If  for  any  reason 


BRITISH  AUSTRALASIAN  MINING  LAW  135 

the  Warden  declines  to  issue  the  permit,  appeal  may  be  had  to 
the  Minister  of  Mines. 

If,  after  searching  over  the  area  covered  by  such  a  permit  the 
holder  or  holders  thereof  desires  to  acquire  mining  rights  thereon, 
notice  must  first  be  given  to  the  surface  owner  or  his  Agent,  or  if 
the  land  is  unoccupied  and  its  owner  cannot  be  located,  a  notice 
must  be  conspicuously  posted  upon  the  tract  desired,  which 
must  be  staked  out  as  in  the  case  of  a  mining  claim.  Written 
application  for  it,  together  with  an  accurate  description  of  its 
metes  and  bounds,  is  then  filed  with  the  Warden  who,  if  it  is 
approved,  and  no  objections  are  lodged  within  a  short  period, 
will  grant  a  lease,  which  must  at  once  be  registered.  Thereafter 
the  leased  area  must  be  operated  strictly  in  accordance  with 
the  terms  of  the  mining  law  and  regulations.  This  area  and 
conditions  are  identical  with  those  prescribed  for  leases  on 
public  lands. 

SOUTH  AUSTRALIA 

(Law  of  1893,  with  amendments  to  date  of  January  1st,  1917) 

The  Province  opens  to  the  prospector  and  miner  its  entire 
territory,  except  areas  alienated  previous  to  1886  for  gold,  and 
except  areas  alienated  previous  to  1888  for  all  other  minerals 
and  metals. 

A  prospecting  license,  called  a  " Miner's  Right"  is  required, 
which  must  be  kept  in  force  indefinitely  by  all  who  desire  to 
continue  holding  mining  property.  The  initial  cost  is  five  shil- 
lings per  annum,  and  renewal  cost  the  same.  It  covers  all  metals 
and  minerals,  but  is  good  for  the  location  of  one  claim  only. 
However,  any  desired  number  may  be  held  by  an  individual, 
except  that  no  person  may  hold  by  virtue  of  them  more  than  one 
alluvial  claim  at  one  time,  although  he  may  hold  by  purchase 
as  many  as  desired. 

Three  kinds  of  claims  are  recognized,  viz.,  Gold  Claims,  Min- 
eral Claims  and  Coal  Claims.     Details  of  the  last,  which  includes 
also  Oil,  Natural  Gas,  Salines,  etc.,  will  not  be  given. 
10 


136  INTERNATIONAL  MINING  LAW 

Gold  Claims  are  of  two  kinds,  namely  Alluvial  Claims  and 
Reef  Claims.  The  former  covers  the  right  to  operate  only  the 
loose  surface  soil,  or  gravel,  or  cement;  while  the  latter  covers 
operations  in  seams,  lodes,  veins,  deposits,  etc.,  in  rock  in  place. 
Both  carry  the  right  to  own  and  produce  any  other  metal  or  min- 
eral found  in  mechanical  or  chemical  association  with  the  gold. 

The  standard  Alluvial  Claim  is  30  feet  square,  and  is  called  a 
"one  man  claim,"  but  a  prospector  who  is  seeking  new  ground 
is  allowed  to  stake  off  what  is  called  an  "alluvial  prospecting 
area/'  and  to  hold  exclusive  prospecting  rights  in  it  while  testing 
it,  but  no  longer.  This  area  varies  in  size  according  to  its  dis- 
tance from  the  nearest  occupied  and  operating  alluvial  area  as 
follows : 

If  distant  100  yards  or  more 100  yards  square. 

If  distant  one  mile  or  more 150  yards  square. 

If  distant  three  miles  or  more 500  yards  square. 

When  gold,  or  any  other  desirable  alluvial  metal  or  mineral, 
is  found  on  such  a  "protected"  area,  the  discoverer  is  entitled 
to  stake  out,  inside  of  the  area,  in  addition  to  the  one  claim  30 
feet  square  that  his  license  calls  for,  additional  claims  as  follows, 
according  to  the  distance  of  the  new  discovery  from  other  occu- 
pied and  operating  areas: 

If  distant  half  a  mile 3  claims,  each  30  feet  square. 

If  distant  one  mile 4  claims,  each  30  feet  square. 

If  distant  two  miles 6  claims,  each  30  feet  square. 

If  distant  three  miles  or  over ...  10  claims,  each  30  feet  square. 

If  the  ground  is  very  wet,  and  shafting  is  required  to  reach  the 
pay  streak  on  the  bedrock,  at  the  discretion  of  the  district  Warden 
claims  30  by  60  feet  may  be  allowed.  If  the  gold  occurs  in  a 
cement  that  must  be  blasted,  the  claim  size  is  36  by  72  feet, 
while  stream  or  creek  claims  are  60  feet  in  length  along  its  course 
and  120  feet  wide. 

Reef  Claims  of  the  ordinary  kind  are  100  feet  in  length  along 
the  line  of  outcrop,  and  600  feet  wide  across  it,  the  locator  being 
allowed  to  apportion  this  width  in  relation  to  the  line  of  outcrop 
as  he  sees  fit,  so  long  as  it  is  included.  But  it  must  be  laid  out 


BRITISH  AUSTRALASIAN  MINING  LAW  137 

as  a  rectangle.  As  in  the  case  of  an  alluvial  discovery,  a  pros- 
pector who  has  found  a  promising  reef  outcrop,  or  indications 
thereof,  and  desires  time  for  explorations  before  actually  deter- 
mining the  position  of  his  lines  and  corners,  may  stake  out  a 
"reef  protection  area'5  of  double  the  length  of  the  ordinary  reef 
claim,  which  gives  him  exclusive  rights  therein  for  three  months. 
Before  the  end  of  this  period  he  must  decide  upon  his  lines 
finally.  Such  a  prospector,  who  has  made  a  new  discovery,  is 
allowed  to  stake  out  within  this  protected  area,  in  addition  to 
the  ordinary  reef  claim,  what  is  called  a  "Reef  reward  claim/'' 
which  varies  in  size  according  to  its  distance  from  the  nearest 
occupied  and  operating  reef  claim,  as  follows: 

If  distant  one  to  five  miles 200  by  600  feet 

If  distant  five  to  10  miles 300  by  600  feet 

If  distant  over  10  miles 400  by  600  feet 

Alluvial  and  reef  discoveries  must  be  reported  within  seven 
days  to  the  authorities,  but  the  protection  area  may  be  staked 
out  before  complying  with  this  regulation. 

Registration  must  be  effected  within  30  days  of  final  staking. 
A  suitable  blank  form  is  provided  for  this  operation  by  the  Mining 
Registrar.  The  prospecting  license  must  be  attached  to  it,  and 
a  fee  of  two  shillings  and  sixpence  paid.  A  certificate  of  regis- 
tration is  then  issued  to  the  applicant,  and  his  license  returned 
to  him  with  the  number  of  the  certificate  endorsed  upon  it. 

Holders  of  gold  claims  have  the  right  to  produce  any  and  all 
other  metals  and  minerals  that  may  be  found  in  mechanical  or 
chemical  combination  with  the  gold. 

The  staking  of  gold  protection  areas  or  claims  consists  in 
erecting  at  each  corner  a  post  not  less  than  three  inches  thick, 
and  projecting  not  less  than  three  feet  above  the  surface.  From 
each  post  two  trenches  must  be  dug  pointing  towards  the  next 
two  corners,  each  trench  to  be  not  less  than  three  feet  long  and 
six  inches  deep.  In  very  rocky  ground  direction  piles  of  loose 
stones  may  be  substituted.  On  each  post  must  be  marked 
the  claim  number  and  date  of  staking. 


138  INTERNATIONAL  MINING  LAW 

Any  number  of  adjacent  gold  claims  may  be  consolidated  or 
amalgamated  into  a  "  block,"  by  making  application  to  the 
authorities  accompanied  by  a  fee  of  three  shillings  and  sixpence. 

In  addition  to  keeping  the  " Miner's  Right"  in  force,  a  claim  is 
maintained  in  force  only  by  the  labor  of  one  man  or  more  for 
eight  hours  during  the  24  of  the  day,  except  on  Sundays,  and 
public  holidays,  and  on  Saturdays,  when  four  hours'  work  suffices. 
When  claims  are  consolidated  into  a  " block"  the  labor  conditions 
are  somewhat  less. 

Tailing  areas  (not  exceeding  one  acre),  Tunnel  areas  (20  feet 
on  each  side  of  its  line),  Rubbish  areas  (200  feet  square,  and 
supposed  to  be  located  at  the  entrance  to  a  tunnel)  and  Dam  or 
Machinery  areas  (not  over  4  acres)  may  be  located,  and  exclusive 
use  thereof  secured,  at  a  cost  in  the  first  three  cases  of  five  shillings 
per  annum,  and  in  the  last  two  of  five  shillings  per  acre  per 
annum.  There  are  also  simple  and  inexpensive  provisions  for 
water  and  ditch  rights. 

Mineral  claims  may  be  of  any  area  up  to  40  acres,  but  must  be 
laid  out  in  rectangular  form,  with  lengths  not  greater  than  twice 
their  width,  and  sides  orientated  magnetically.  Such  claims 
carry  the  right  to  mine  for  all  metals  and  minerals  except  gold. 
When  this  metal  is  found  in  the  ore  produced  from  a  mineral 
claim,  the  owner  has  the  preferential  right  to  locate  a  gold  claim 
within  and  on  top  of  his  mineral  claim,  and  must  do  so  or  lose 
the  right  to  produce  the  gold.  To  maintain  title,  the  claimant, 
in  addition  to  keeping  his  " Miner's  Right"  continually  in  force, 
must  have  two  men  constantly  at  work  for  8  hours  of  each  24 
(4  hours  on  Saturdays)  excepting  Sundays  and  public  holidays. 

When  ore  is  discovered  in  presumably  payable  quantity,  the 
fact  must  be  reported  to  the  authorities.  Registration  is  pre- 
scribed as  in  the  case  of  Gold  Claims. 

LEASES 

All  varieties  of  mining  claims  may  be  and  are  expected  to  be 
converted  into  leases  as  soon  as  they  become  payable  (except 
alluvial  claims).  The  procedure  for  conversion  is  simple  and 


BRITISH  AUSTRALASIAN  MINING  LAW  139 

inexpensive.  They  may  be  taken  out  on  single  claims  or  blocks 
of  claims,  and  when  such  consolidations  are  effected  the  work 
required  for  maintenance  may  be  concentrated  at  one  or  more 
points  at  the  will  of  the  claimant.  The  maximum  area  for  a 
gold  claim  lease  is  20  acres,  and  for  a  mineral  lease  40  acres. 
The  maximum  term  is  42  years  in  either  case.  The  rental  is 
one  shilling  per  acre  per  annum,  in  addition  to  which  the  Govern- 
ment imposes  a  royalty  of  2J^  %  on  the  net  profits.  The  working 
requirements  are  the  labor  of  at  least  one  man  per  five  acres  or 
fraction  thereof,  with  equitable  reductions  of  this  requirement 
when  animal  power  or  machinery  is  installed. 

The  maximum  area  for  a  single  mineral  lease  is  40  acres,  but 
consolidation  into  a  block  may  be  effected,  as  with  gold  claims. 
The  maintenance  conditions  are  the  labor  of  one  man  per  10 
acres  during  working  days.  The  maximum  term  is  42  years, 
and  the  annual  rental  and  royalty  the  same  as  with  gold  leases. 
If  the  mineral  found  and  produced  contains  gold,  a  gold  lease 
must  also  be  taken  out. 

The  law  provides  equitable  and  inexpensive ,  procedures  by 
which  prospecting  and  mining  may  be  carried  on  upon  alienated 
land,  where  the  Government  has  reserved  the  mineral  rights 
in  making  the  grant,  and  also  for  expropriation  of  areas  that 
prove  to  be  valuable  for  their  mineral  contents  and  where  the 
Government  has  not  reserved  its  mineral  rights  in  the  grant, 
provided  the  owner  has  not  already  exercised  his  preferential 
rights  to  prospect,  explore,  and  produce. 

TASMANIA 

(Law  of  1905,  with  amendments  to  date  of  January  1st,  1917) 

Prospecting  is  not  free.  A  document  called  a  "  Prospecting 
License ';  is  required  by  all  who  engage  in  the  occupation,  which 
costs  ten  shillings  per  annum.  One  may  be  taken  out  by  any 
individual  over  15  years  of  age,  or  by  the  registered  Manager  of 
a  registered  mining  company,  or  the  registered  Agent  of  a  mining 
company  that  is  not  registered  in  Tasmania,  or  the  duly  author- 
ized representative  of  a  partnership.  It  conveys  the  exclusive 


140  INTERNATIONAL  MINING  LAW 

right  to  prospect  for  any  metal  or  mineral,  on  any  selected  area  of 
Crown  land  that  may  be  applied  for,  and  to  enjoy  full  protection 
in  the  occupation  of  the  same.  But  it  does  not  give  the  right 
to  remove  or  realize  upon  any  substance  found  while  pros- 
pecting. 

Mining  is  not  free.  A  document  called  a  " Miner's  Right"  is 
required,  which  costs  five  shillings  per  annum,  and  may  be  pur- 
chased by  any  individual  legally  capable  of  taking  out  a  pros- 
pecting license.  This  confers  the  right  to  take  possession  of, 
occupy  and  use  one  claim  upon  any  public  land  at  the  time  avail- 
able under  the  provisions  of  the  law,  and  in  accordance  with  its 
rules  and  regulations,  to  mine  and  produce  therefrom,  and 
realize  upon  any  metal  or  mineral  produced,  and  to  do  all  other 
acts  properly  necessary  to  the  business  of  mining. 

The  State  also  issues  a  document  called  a  "  Consolidated 
Miner's  Right,"  which  simply  represents  any  number  of  single 
"  Miner's  Rights,"  and  which  costs  a  sum  equal  to  five  shillings 
multiplied  by  the  number  of  " Rights"  it  covers,  and  confers  the 
same  rights  and  privileges. 

Any  land  duly  staked  and  registered  and  thereby  acquired 
under  either  form  of  " Miner's  Right"  is  held  to  be  a  chattel 
interest  under  the  common  law  definition  of  that  term,  and  so 
long  as  the  "Right"  is  maintained  in  good  order  and  the  property 
operated  in  accordance  with  the  law  and  regulations  thereunder, 
any  gold  or  other  metal  or  mineral  found  upon  it  becomes  and 
remains  the  absolute  property  of  the  holder  thereof. 

Mining  claims  cannot  be  staked  off  on  prospecting  areas 
(except  by  the  holder  of  the  area),  nor  upon  improved  or  culti- 
vated land,  nor  upon  tracts  already  occupied  by  ditches,  reser- 
voirs, or  wells. 

Prospecting  Licenses,  Miner's  Rights  and  Consolidated  Miner's 
Rights  are  renewable  annually  at  the  same  cost  as  that  of  their 
issuance.  Any  mining  tenement  (prospecting  area,  mining  claim, 
or  block  of  claims)  is  automatically  abandoned  and  forfeited  when 
the  license  or  "right"  under  which  it  was  located  is  not  renewed 
at  the  date  of  its  expiry,  or  within  seven  days  thereafter. 


BRITISH  AUSTRALASIAN  MINING  LAW  141 

The  size  of  a  prospecting  area  obtainable  under  a  prospecting 
license  is  20  acres  for  gold  alone,  40  acres  for  all  other  metals  or 
minerals  (except  coal,  shale,  slate,  freestone  or  limestone),  and 
100  acres  for  these  excepted  substances.  But  upon  the  recom- 
mendation of  the  District  Warden  the  Minister  of  Mines  is' 
empowered  to  enlarge  the  last  mentioned  area  up  to  a  maximum 
of  320  acres. 

Prospecting  areas  are  acquired  by  staking  the  corners  of  the 
same  in  the  usual  way,  and  by  planting  a  post  in  the  center  of  the 
tract  upon  which  is  clearly  and  legibly  written  the  words  "  Pros- 
pecting Area/'  together  with  the  name  of  the  claimant,  the  area 
of  the  claim,  the  date  of  the  staking,  the  metal  or  metals  or  min- 
eral for  which  search  is  being  made,  and  the  relative  position  of 
such  post  and  notice  on  the  tract.  This  notice  must  be  main- 
tained in  good  order  during  occupancy,  and  a  copy  of  it  must  be 
filed  for  registration  at  the  office  of  the  nearest  Registrar  at  the 
earliest  practicable  date.  Work  must  begin  within  48  hours 
thereafter,  and  continue  to  the  extent  of  at  least  the  labor  of  one 
man  during  40  hours  per  week.  If  the  area  has  been  enlarged 
by  special  permit  of  the  Minister  of  Mines,  the  labor  require- 
ments are  correspondingly  increased.  During  tenancy  no  mate- 
rial of  value  may  be  taken  away  without  special  permit,  except 
assay  samples,  and  no  work  other  than  bona  fide  exploration  for 
metals  or  minerals  may  be  done  upon  it.  Finally,  if  the  holder 
decides  to  abandon  the  tract,  a  notice  to  that  effect  must  be 
filed  with  the  Registrar  without  delay. 

The  unit  mining  claim  that  may  be  acquired  under  the  au- 
thority of  a  single  or  consolidated  Miner's  Right  is  a  rectangle 
50  yards  square,  or  the  equivalent  of  about  half  an  acre.  Any 
number  of  these  up  to  ten  may  be  staked  as  a  block  when  con- 
tiguous, by  an  association  of  " Rights"  holders,  according  to  the 
number  of  individuals  forming  the  association.  The  process  of 
staking  consists  of  planting  substantial  posts  at  each  corner,  one 
of  which  is  called  the  " Datum  Post."  To  this  must  be  firmly 
affixed  a  notice  inscribed  ''Miner's  Right  Claim,"  under  which  is 
legibly  written  the  name  of  the  claimants,  the  date  of  location, 


142  INTERNATIONAL  MINING  LAW 

and  the  relative  position  of  the  notice  to  the  rest  of  the  tract 
This  must  be  constantly  maintained  in  good  order  and  condition. 
In  addition,  direction  trenches  must  be  dug  at  each  corner. 
Within  48  hours  a  copy  of  the  notice  must  be  filed  with  (or  mailed 
to)  the  nearest  Registrar.  Within  the  same  period  also  bona 
fide  work  must  begin  to  the  extent  of  not  less  than  the  labor  of 
one  man  per  24  hours  per  legal  working  day,  per  unit  claim  of 
the  tract. 

The  registration  fee  for  prospecting  areas  and  single  or  blocked 
mining  claims  is  2s.  6d.  In  each  case  the  Warden  has  the  right 
to  demand  a  survey  at  the  expense  of  the  claimant.  Survey  fees 
are  reasonable.  Claimants  are  entitled  after  registration  to 
receive  from  the  Registrar  a  Certificate,  which  is  prima  facie 
evidence  of  the  right  of  tenancy  of  the  holder.  After  registration, 
conveyancing  rights  are  complete,  providing  the  grantee  is  the 
legal  holder  of  a  sufficient  number  of  "  Miner's  Rights"  to  receive 
the  transfer. 

Two  kinds  of  leases  are  granted,  called  respectively  Gold 
Mining  Leases  and  Mineral  Leases.  They  are  issued  only  by 
the  Minister  of  Mines  with  the  consent  of  the  Governor.  The 
first  mentioned,  when  on  Crown  land,  conveys  the  right  to  operate 
for  gold  only.  The  maximum  area  is  40  acres,  and  the  term  21 
years,  renewable  once,  and  the  rental  is  £1  per  acre  per  annum. 
The  Mineral  Lease  on  Crown  land  conveys  the  right  to  operate 
for  all  metals  or  minerals  except  gold.  But  if  gold  is  found  in 
and  recovered  from  its  ores,  the  lessee  must  at  once  report  the 
circumstance  to  the  Minister  of  Mines,  who  may  demand  that 
the  Mineral  Lease  be  suspended  and  a  Gold  Lease  substituted. 
But  the  lessee  has  the  right  to  decline  surrender  on  undertaking 
to  pay  a  royalty  of  10  shillings  per  ounce  on  all  gold  recovered. 
The  maximum  area  for  a  mineral  lease  is  80  acres,  excepting  in. 
the  case  of  coal,  shale,  slate,  freestone  or  limestone,  when  it  may 
be  as  much  as  320  acres.  The  term  is  21  years,  renewable  once, 
and  the  rental  is  five  shillings  per  acre  per  annum  in  advance 
excepting  for  coal,  shale,  slate,  freestone  and  limestone,  for  which 
the  rate  is  2s.  6d. 


BRITISH  AUSTRALASIAN  MINING  LAW  143 

Alluvial  leases  are  obtainable  for  the  beds  and  banks  of  streams 
running  over  Crown  lands.  The  maximum  area  is  40  chains 
along  the  line  of  the  channel  by  five  chains  on  each  side  of  the 
center,  and  the  Governor  has  the  right  to  reduce  these  dimen- 
sions, or  to  refuse  the  application  entirely.  The  maximum 
term  is  10  years,  and  the  rental  five  shillings  per  acre  per 
annum. 

Applications  for  leases  are  filed  with  the  District  Warden  or 
the  Minister  of  Mines,  and  must  be  accompanied  with  a  deposit 
of  money  equal  to  a  half  year's  rental  of  the  land  applied  for, 
plus  the  surveying  fee. 

In  gold  mining  leases  a  sum  not  less  that  £10  per  acre  per 
annum  must  be  expended  by  the  lessee  on  the  ground  in  the 
shape  of  labor  and  general  improvements.  For  mineral  leases 
the  requirements  are  the  equivalent  of  two  pounds  per  acre  per 
annum. 

All  leases  must  be  registered,  after  which  conveyancing  rights 
are  complete,  but  the  fact  of  a  transfer  must  be  endorsed  on  the 
document  itself  and  by  the  Minister.  Registration  fees  in  general 
are  reasonable.  It  is  not  necessary  that  the  applicant  for  a 
lease,  nor  the  grantee  in  the  case  of  the  transfer  of  one,  should 
be  the  holder  of  a  " Miner's  Right." 

Ample  provisions  are  made  in  the  law  for  Water,  Ditch, 
Reservoir,  and  Timber  Rights,  for  Machinery,  Tramway,  and 
Tailings  Sites,  and  for  the  establishment  of  Drainage  Areas. 
Also  for  all  necessary  easements. 

Prospecting  licenses  may  be  issued  to  individuals  under  the 
age  of  18  years,  but  not  ''Miner's  Rights." 

MINING  ON  PRIVATE  LAND 
» • 

Written  application  for  a  permit  to  enter  must  first  be  made 
to  the  Warden.  They  are  granted  for  periods  not  to  exceed  90 
days,  and  cover  such  an  area  as,  in  his  opinion,  seems  right  under 
the  circumstances.  The  applicant  must  also  deposit  with  the 
same  official  such  a  sum  of  money  as,  in  his  opinion,  is  sufficient 


144  INTERNATIONAL  MINING  LAW 

to  cover  possible  damage  to  the  premises.  This  deposit  is 
returnable  if  no  injury  results,  otherwise  it  is  payable  in  part 
or  wholly  to  the  surface  owner.  Such  a  permit  conveys  the 
right  merely  to  inspect  the  surface  of  the  premises  but  not  to  do 
any  digging,  or  take  away  anything  found  except  as  assay 
samples.  The  latter  must  not  exceed  28  Ibs.  in  weight.  If, 
after  prospecting,  the  holder  of  the  permit  desires  to  explore 
the  ground,  he  may  mark  out  an  area,  and  apply  for  a  lease  on 
the  same,  at  the  same  time  notifying  the  surface  owner  of  his 
intentions,  and  showing  him  the  area  selected.  He  must  also 
post  a  notice  at  a  conspicuous  point  on  the  chosen  tract,  giving 
detailed  description  of  the  same  and  supply  a  copy  of  this  to  the 
district  Warden.  The  area,  term,  and  rental  conditions  of  the 
lease,  if  allowed,  are  the  same  as  those  granted  for  leases  on 
Crown  lands. 

VICTORIA 

(Law  of  September  16th,  1915,  with  amendments  to  date  of  January  1st, 

1917) 

The  State  claims  the  sole  and  exclusive  ownership  of  the 
precious  metals  (gold,  silver  and  platinum),  whether  existing 
on  the  public  domain,  or  on  privately  owned  property,  except 
where,  in  the  deed  of  grant  for  the  latter,  the  mineral  rights 
have  not  been  reserved;  also  of  all  other  metals  and  minerals, 
except  in  privately  owned  property.  The  State  does  not  give 
a  fee  simple  title  to  any  mineral  land,  but  allows  the  location  of 
claims  and  prospecting  areas,  and  the  temporary  possession  of 
them  for  prospecting  and  developing  purposes,  under  the  regula- 
tions of  the  law,  and  then  requires  the  conversion  of  the  same 
into  leases,  under  which  production  may  take  place.  But  in 
the  case  of  alluvial  claims,  production  may  begin  immediately 
after  staking  and  registration,  and  leases  are  not  necessary. 

Prospecting  is  not  free.  A  license  is  required.  The  document 
is  called  a  "Miner's  Right."  An  unlimited  number  of  these 
may  be  taken  out  by  any  individual  of  either  sex,  if  of  legal 


BRITISH  AUSTRALASIAN  MINING  LAW  145 

age  and  status.  Each  "Right"  costs  two  shillings  and  sixpence 
per  annum,  and  may  be  taken  for  any  period  up  to  15  years. 
Each  is  good  for  the  location  of  one  mining  claim,  and  also  one 
residence  site  and  water  right. 

The  following  varieties  of  claims  may  be  located : 

1.  Ordinary  Quartz  Claim.     100  feet  along  the  line  of  out- 
crop, by  600  feet  in  width,  with  ownership  also  of  all  the  alluvial 
on  the  surface. 

2.  Quartz   Prospecting   Claim.     400   feet   along   the   line   of 
outcrop,  by  600  feet  in  width.     But  such  a  claim  must  be  at 
least  1500  feet  distant  from  any  other  claim  on  the  same  reef 
or  lode. 

3.  Quartz  Prospecting  Area.     1500  feet  square,  but  must  be 
distant  at  least  two  miles  from  the  nearest  operated  mine.     This 
variety  of  claim  may  be  held  for  12  months  only,  and  one  or 
more  men  must  be  kept  at  work  upon  it  on  legal  working  days. 
Such   an  area  does  not  confer  the  ownership  of  any  alluvial 
deposits  that  may  occur  upon  it.     When  reef  gold  is  discovered 
within  its  lines  the  claimant  is  under  legal  obligations  to  con- 
vert it  into  a  lease  as  soon  as  it  becomes  evident   that   the 
proposition  can  be  worked  at  a  profit.      The  maximum  area 
that  will  then  be  granted  is  800  feet  along  the  outcrop  by  600 
feet  in  width. 

4.  Quartz    Tunneling   Claim.     Any   holder   of    an    Ordinary 
Quartz,  a  Quartz  Prospecting,  or  a  Mineral  Claim  may  also  take 
possession  of  an  area  outside  of  and  beyond  his  claim  for  a  tunnel 
site.     The  maximum  size  for  this  class  of  claim  is  3000  feet  by 
12  feet  on  either  side  of  the  center  line  of  the  tunnel,  together 
with  a  tract  300  by  120  feet  at  the  entrance. 

5.  Alluvial  Claim.     There  are  ten  kinds  of  this  order  of  claims, 
depending  upon  various  conditions  such  as  topography,  depth  of 
gravel  and  bed  rock,  distance  from  other  claims,  etc.     All  must 
be  of  rectangular  shape  when  practicable,  with  length  no  more 
than  three  times  their  width .     As  to  size,  they  vary  from  75  by  100 
feet  to  23  acres. 

6.  Mineral  Claim.     Three  acres  in  size.     But  an  association 


146  INTERNATIONAL  MINING  LAW 

of  ten  individuals,  each  holding  a  Miner's  Right,  may  take  up  a 
tract  not  exceeding  30  acres  in  extent, 

7.  Mineral  Prospecting  Claim.  Allowable  area  five  acres, 
but  it  cannot  be  located  nearer  than  one  mile  from  a  mineral 
claim.  Term  of  occupancy  12  months.  Upon  discovery  of 
payable  ore  it  must  be  converted  into  a  three-acre  mineral 
claim. 

On  all  these  varieties  of  claims  the  act  of  taking  possession 
consists  of  erecting  substantial  posts  or  stone  monuments  at 
each  corner,  with  trenches  three  feet  long  and  six  inches  deep 
at  the  base  of  each,  and  pointing  towards  the  next  corner. 
Registration  is  required  within  seven  days  thereafter.  Upon 
registration  the  Registrar  delivers  to  the  claimant  a  notice, 
in  specified  form,  which  must  be  posted  at  a  conspicuous  point 
on  the  claim  within  the  next  seven  days,  and  maintained  there 
for  the  following  seven  days.  At  the  expiration  of  the  last 
term,  if  no  objection  to  the  registration  has  meantime  been 
filed  with  the  Registrar,  the  latter  delivers  to  the  claimant  a 
Certificate  in  a  specified  form,  which  is  prima  facie  evidence  of 
title.  A  survey  is  not  obligatory,  but  is  considered  desirable. 
Surveying  costs  and  registration  fees  are  moderate.  After 
registration,  conveyancing  rights  are  complete. 

The  law  makes  satisfactory  provisions  for  water  rights,  and 
for  machinery,  residence,  and  business  sites. 

All  claim  titles  are  maintained  in  force  by  labor,  which  must 
begin  within  fourteen  days  after  registration,  and  thereafter 
must  be  continuous  on  legal  working  days.  Details  are  as 
follows : 

For  Ordinary  Quartz  Claim,  one  legal  shift  (eight  hours  per 
24)  per  day,  per  each  100  feet  along  line  of  reef,  if  the  mine  is  in 
pay.  Half  that  amount  if  it  is  not. 

For  Quartz  Prospecting  Claim,  one  shift  per  400  feet  of  reef, 
or  two  shifts  per  600  feet. 

For  Ordinary  Alluvial  Claim,  one  shift  for  each  unit  area  of 
75  by  100  feet,  if  the  operations  are  in  shallow  ground  (under 
40  feet) .  Half  that  number  during  the  first  two  months  of  opera- 


BRITISH  AUSTRALASIAN  MINING  LAW  147 

tions.  There  are  fourteen  modifications  of  this  requirement, 
depending  upon  depth  to  bed  rock,  nature  of  claim,  distance  from 
other  workings  and  other  considerations. 

Corner  stakes,  trenches  therefrom,  and  other  landmarks 
required  by  the  law,  together  with  all  notices  posted  thereon,  must 
be  continually  maintained  in  good  order  and  repair. 

The  " Miner's  Right"  must  be  kept  on  hand  and  available  at 
all  times,  for  inspection  visits  from  the  authorities. 

Each  " Miner's  Right"  carries  with  it  the  right  to  locate,  own, 
and  occupy  a  residence  site,  rectangular  in  shape,  and  in  size 
ranging  from  one-quarter  to  one  acre,  according  to  whether  it  is 
within  the  limits  of  a  town  site,  or  near  one,  or  adjoining  the 
claim. 

There  is  no  obligation  to  convert  claims  into  leases,  but  it  is 
usually  found  advantageous  to  do  it  as  soon  as  the  property  is 
proven  to  be  of  value. 

Leases  are  of  two  kinds,  namely,  Gold  Mining  and  Mineral. 
The  former  carries  the  right  to  work  for  gold  only,  the  latter  to 
recover  any  other  mineral  or  metal.  The  maximum  area  for 
both  kinds  is  640  acres,  and  the  maximum  term  15  years,  re- 
newable indefinitely.  The  rental  for  the  former  is  20s.  6d. 
per  acre  per  annum,  and  for  the  latter  from  one  shilling  to  20 
shillings  per  acre  per  annum  at  the  discretion  of  the  Minister  of 
Mines. 

To  obtain  leases,  formal  application  must  be  made  to  the 
Governor,  who  has  the  right  to  refuse  to  grant  them  under  certain 
conditions,  and,  when  allowing  them,  to  specify  and  demand  all 
terms  thereof.  In  each  lease  the  particular  metal  or  mineral 
that  is  expected  or  desired  to  be  worked  for  must  be  specified. 
If  thereafter  other  metals  or  minerals  are  found  and  desired,  a 
license  to  work  for  them  must  be  procured  from  the  Minister  of 
Mines.  The  labor  conditions  for  maintenance  of  title  are  largely 
a  matter  of  bargain  between  the  applicant  and  the  Governor-in- 
Council,  when  applying  for  the  lease. 

The  State  imposes  no  royalties  of  any  kind  on  the  production  of 
any  kind  of  metal  or  mineral. 


148  INTERNATIONAL  MINING  LAW 

WESTERN  AUSTRALIA 

(Law  of  1904,  with  amendments  to  date  of  January  1st,  1917) 

The  State  asserts  its  exclusive  ownership  of  gold,  silver,  and 
other  precious  metals,  upon  all  land  within  its  boundaries, 
whether  alienated  or  not,  and  whether  these  substances  occur  on 
the  surface  or  underground;  also  to  all  other  metals  or  minerals 
on,  in,  or  below  the  surface,  excepting  where  these  latter  exist 
on  areas  alienated  in  fee  simple  prior  to  January  1st,  1899. 

Prospecting  is  not  free.  A  document  called  a  ''Miner's  Right " 
is  required  to  be  held  by  all  individuals,  partnerships,  or  cor- 
porations who  desire  to  engage  in  searching  for  mines.  This 
costs  five  shillings  per  year,  and  is  renewable  indefinitely  at  the 
same  price.  Any  desired  number  may  be  purchased  and  held 
by  one  individual,  and  each  one  is  good  for  the  location  of  one 
claim  on  the  Public  Domain.  Every  holder  of  a  " Miner's 
Right"  who  desires  to  prospect  on  alienated  land,  can  obtain 
from  the  district  Warden  an  additional  permit,  without  extra 
cost,  but  good  for  30  days  only,  which  gives  the  right  to  enter 
upon  such  areas  and  prospect;  provided,  however,  that  he  fur- 
nishes to  the  Warden  an  indemnity  bond  sufficient  in  amount 
to  reimburse  the  surface  owner  for  any  damage  his  activities 
may  cause. 

The  "Miner's  Right"  and  any  such  additional  permit  as  may 
be  issued  under  it,  confers  simply  the  privilege  of  walking  over 
and  critically  examining  the  surface,  detaching  and  taking  away 
assay  hand  samples  of  outcropping  rocks,  and  testing  gravel 
with  the  pan,  but  does  not  allow  of  the  disturbance  of  the  surface 
by  digging  or  making  excavations  of  any  kind.  Claims  also 
may  be  staked  out,  but  no  exploring  work  may  be  done  upon 
them  until  they  have  been  approved  and  registered. 

The  law  recognizes  three  classes  of  unit  mining  claims,  called 
respectively  "Alluvial,"  "Alluvial  Extended,"  and  "Reef" 
Claims.  Their  dimensions  vary  according  to  the  substance 
they  are  supposed  to  contain,  and  also  according  to  the  number 
of  locators  or  miners  in  the  partnership  at  the  time  of  staking. 


BRITISH  AUSTRALASIAN  MINING  LAW 


149 


What  is  known  as  a  "One  Man's  Claim"  of  the  various  kinds, 
has  the  maximum  dimensions  shown  in  the  following  table. 


Alluvial 

Alluvial  extended 

Reef  or  lode 

Gold   silver,  platinum 

75  X    75  ft. 

150  X    75ft. 

75  X  390  ft. 

All  other  metallic  minerals. 

300  X  300  ft. 

600  X  300  ft. 

150  X  390  ft. 

Non-metallic  minerals.  .  .  . 

375  X  300  ft. 

900  "X  300ft. 

225  X  390  ft. 

Precious  stones  

150  X  150ft. 

300  X  150  ft. 

150  X  390  ft. 

In  each  case  the  first  dimension  given  is  called  the  "length"  and 
the  second  the  "width." 

Claim  partnerships  up  to  ten  in  number  are  recognized.  When 
such  an  association  makes  locations,  each  individual  composing 
it  being  in  possession  of  one  or  more  "Miner's  Rights,"  the 
combination  claim  allowable  is  determined  in  size  by  multi- 
plying the  length  of  the  unit  claim  by  the  number  of  partners. 
Thus,  for  example,  a  three-man  alluvial  claim  would  be  225 
feet  long  by  75  feet  wide ;  and  a  seven-man  lode  or  reef  claim,  for 
metals  and  minerals  other  than  gold,  silver,  and  platinum,  would 
be  1050  feet  long  by  390  feet  wide. 

All  claims  must  be  laid  off  in  rectangular  shape,  with  their 
length  along  the  line  of  the  alluvial  channel  or  pay  streak,  or 
along  the  outcrop  of  the  lode  or  vein  as  the  case  may  be,  and  the 
width  at  right  angles  thereto. 

The  class  called  "Extended  Alluvials"  may  only  be  located 
on  abandoned  and  previously  worked  ground,  or  very  low  grade 
gravels,  or  upon  alluvial  areas  where,  either  by  reason  of  exces- 
sive water,  large  boulders,  or  other  objectionable  conditions, 
the  expenses  of  operating  are  greater  than  usual. 

Mining  properties  of  all  kinds,  whether  single  claims,  partner- 
ship groups,  company  consolidations,  or  leased  areas,  are  known 
legally  as  "mining  tenements,"  a  very  convenient  term  for 
general  use  when  properly  understood. 


150  INTERNATIONAL  MINING  LAW 

The  registration  of  alluvial  claims  is  not  required,  it  being 
assumed  that  the  owner  or  owners  practically  live  upon  their 
ground  and  work  it  continuously  until  it  is  exhausted,  and  then 
abandon  it.  But  registration  is  not  forbidden,  and  may  be 
effected  by  any  claim  holder  who  desires  to  do  so.  After  the 
first  three  days  of  possession  after  staking,  every  alluvial  tene- 
ment must  have  one  shift  of  labor  per  claim,  per  day  of  24  hours, 
put  upon  it,  excepting  for  Sundays,  public  holidays,  and  the 
Saturday  half  holiday.  The  legal  labor  shift  is  of  eight  hours' 
length,  and  on  Saturday  four  hours.  Where  a  number  of  claims 
are  blocked  or  consolidated,  as  in  partnership  or  company  opera- 
tions, the  work  for  all  may  be  done  at  one  place. 

All  other  classes  of  mining  tenements  must  be  registered  as 
soon  after  staking  as  possible,  and  do  not  become  valid  properties 
until  they  are.  The  law  does  not  specify  any  stated  time  during 
which  this  act  must  be  performed.  The  cost  is  five  shillings 
per  claim. 

On  "Reef"  claims  (which  covers  all  kinds  of  metalliferous 
deposits  in  rock  in  place),  the  requirements  to  maintain  title  are 
one  shift  of  labor,  per  two  unit  claims,  per  day  of  24  hours,  with 
exemptions  as  just  mentioned.  But  this  applies  only  during  the 
period  of  exploration  and  development.  As  soon  as  production 
begins,  and  as  long  as  it  continues,  the  tenement  must  be  worked 
as  continuously  as  in  the  case  of  alluvial  properties. 

The  district  Warden  has  the  power  at  any  time  to  require  that 
a  mining  tenement  be  surveyed,  in  which  case  the  holder  is 
compelled  at  once  to  deposit  the  cost  of  the  same.  The  charges 
for  this  kind  of  work  range  from  $10  for  an  area  of  one  acre  or 
less,  to  $250  for  5000  acres,  and  may  be  averaged  at  about  $25 
per  diem  for  the  Surveyor's  time,  he  paying  for  his  own 
assistants. 

Reasonable  and  simple  regulations  are  provided  for  the  staking 
of  dredging  areas,  and  their  registration.  All  applications  for 
rights  of  this  class,  after  being  approved  by  the  local  District 
Warden,  must  be  referred  by  him  to  the  Minister  of  Mines,  who 
may  impose  such  working  and  other  conditions  as  he  sees  fit, 


BRITISH  AUSTRALASIAN  MINING  LAW  151 

excepting  that  a  uniform  rental  of  2s.  6d.  per  acre  per  annum  is 
charged,  payable,  as  usual,  in  advance. 

The  registration  of  claims  of  all  kinds  is  effected  at  the  office 
of  the  district  Warden. 

It  is  the  expectation  of  the  law  that  as  soon  as  a  claim  of  any 
kind  except  alluvial  is  developed  to  the  point  where  production  of 
ore  begins,  the  holder  or  holders  thereof  will  call  for  a  lease,  and 
provision  is  made  for  the  conversion  of  mining  tenement  into 
leases  at  any  time.  Previous  to  such  conversion,  except  in  the 
case  of  Alluvial  and  Alluvial  Extended  claims,  production  of  and 
realization  upon  ore  is  not  permitted. 

The  Governor  only  has  the  power  to  grant  leases  for  mining 
purposes.  The  areas  so  obtainable  for  gold,  silver,  and  platinum 
mining  range  in  extent  from  24  to  48  acres,  with  a  maximum 
term  of  21  years,  renewable  for  a  second  term  of  the  same  length. 
The  rental  is  five  shillings  per  acre  per  annum  for  the  first  year, 
and  20  shillings  per  acre  for  each  subsequent  year,  payable  in 
advance. 

For  a  lease  covering  metals  other  than  gold,  silver,  and  plati- 
num, and  for  all  minerals  except  coal,  areas  ranging  in  extent  from 
48  to  96  acres  may  be  obtained,  for  the  same  term  (with  renewal 
right)  as  in  the  preceding  paragraph.  The  rental  is  five  shillings 
per  acre  per  annum,  in  advance.  For  coal  the  maximum  area  is 
300  acres,  and  no  rental  is  charged.  In  lieu  thereof  a  royalty  of 
threepence  per  ton  for  the  first  ten  years  of  the  period  is  exacted, 
and  sixpence  per  ton  for  its  remaining  years. 

When  leases  are  applied  for  to  operate  properties  containing  a 
metal  or  metals  other  than  gold,  silver,  or  platinum,  or  to  mine 
for  non-metallic  substances,  or  combinations  of  any  of  them,  the 
particular  substance  or  substances  which  induced  the  applicant 
to  apply  for  the  lease,  and  which  he  expects  to  recover  from  his 
operations,  must  be  specified  in  the  application,  and  all  leases  of 
this  kind  must  contain  a  reservation  of  the  precious  metals;  that 
is  to  say,  they  do  not  convey  the  right  to  mine  for  gold,  silver, 
or  platinum. 

When  any  one  or  more  of  these  precious  metals  is  found  to  exist 
n 


152  INTERNATIONAL  MINING  LAW 

in  ore  produced  from  a  mineral  lease,  the  fact  must  be  at  once 
reported  to  the  Minister  of  Mines.  If,  in  the  opinion  of  this 
official  the  value  of  the  precious  metal  or  metals  recoverable  is 
insufficient  to  make  a  payable  property  without  the  assistance  of 
the  value  of  the  other  metals  or  minerals  that  may  at  the  same 
time  be  recoverable,  he  may  impose  upon  the  lessee  a  royalty  of 
one  shilling  per  ounce  of  gold  recovered.  But  if  he  concludes  that 
the  property  could  be  worked  at  a  profit  on  the  basis  of  the  gold 
contents  of  the  ore  alone,  he  may  demand  the  surrender  of  the 
mineral  lease,  and  the  substitution  for  it  of  a  gold-mining  lease. 
Or,  the  lessee  has  the  option  to  agree  to  pay  a  royalty  of  ten 
shillings  per  ounce  of  gold  recovered,  and  keep  the  mineral  lease. 

If,  after  taking  a  mineral  lease,  the  holder  thereof  finds  unex- 
pected ore  yielding  substances  other  than  the  precious  metals, 
and  not  specified  in  his  lease,  he  must,  under  heavy  penalty,  and 
before  producing  or  realizing  upon  any  of  the  new  material  dis- 
covered, report  to  the  Minister  of  Mines,  who,  at  his  discretion, 
may  give  him  permission  to  operate  for  the  new  substance,  in 
consideration  of  the  payment  of  such  an  increased  royalty  as  the 
Minister  may  decide  upon. 

Every  application  for  a  lease  must  be  accompanied  with  the 
survey  fee,  and  the  first  year's  rental. 

Leased  premises  may  be  used  only  for  mining  purposes,  and 
such  other  activities  as  are  naturally  incidental  thereto,  and  no 
sub-leases  may  be  granted  without  the  written  consent  of  the 
Governor.  A  fee  of  20  shillings  is  required  when  the  papers  for 
a  lease  of  any  kind  are  delivered. 

After  the  registration  of  a  mining  claim,  or  the  delivery  of  the 
papers  of  a  lease,  full  conveyancing  rights  attach  to  the  property, 
subject  however  to  the  consent  of  the  Minister  of  Mines,  the  regis- 
tration of  the  instrument  of  conveyance,  and  the  payment  of  a 
transfer  fee. 

As  a  general  proposition  two  or  more  leased  areas  may  be  con- 
solidated under  one  ownership,  so  long  as  the  total  area  in  such 
consolidation  does  not  exceed  96  acres.  But,  when  it  can  be 
shown  to  the  satisfaction  of  the  Minister  of  Mines  that  a  larger 


BRITISH  AUSTRALASIAN  MINING  LAW 


153 


area  is  necessary,  in  order  to  protect  operations  in  the  case  of  a 
vein  or  lode  having  a  very  flat  dip,  consolidations  greater  than 
96  acres  may  be  allowed,  up  to  the  extent  of  permitting  opera- 
tions to  be  carried  on  to  a  distance  of  3000  feet  from  the  sur- 
face, measured  on  the  dip  of  the  ore  channel  or  lode. 

Coal  mining  leases  may  be  consolidated  up  to  a  total  of  2500 
acres,  and,  when  the  seam  worked  lies  at  a  depth  of  over  1000 
feet  from  the  surface,  to  the  extent  of  5000  acres. 

During  three  months  after  the  expiration,  forfeiture,  or  aban- 
donment of  a  lease,  the  former  owner  may  remove  any  machinery 
or  other  chattels  that  he  may  have  placed  upon  it  while  it  was 
in  his  possession. 

All  leases  must  be  arranged  for  and  registered  at  Perth,  the 
capital  of  the  State,  where  the  office  of  the  Minister  of  Mines  is 
located. 

RESULTS 

In  the  British  Australasian  states  gold  production  began  in 
1851,  tin  in  1872,  copper  in  1879,  silver  (other  than  that  recovered 
from  placer  gold)  in  1880,  lead  in  1885  and  zinc  in  1904.  The 
value  of  the  output  of  these  metals  in  the  sixty-six  year  term 
that  has  since  elapsed  up  to  the  end  of  1916,  and  the  production 
of  1916,  is  shown  in  the  following  table. 


Metal 

Gold 

Term 

66  years 

Totals 
$3  214  597  945 

Average  per  year 

$48  706  029 

1916 

$40,392,700 

Tin  

.  .  .   45  years 

144,419,540 

3,209,323 

4,793,700 

Copper.  . 
Silver 

,  .  .   38  years 
37  years 

287,457,073 
286  408  141 

7,564,659 
7  740  761 

20,827,800 
8,500,000* 

Lead  

,  .  .   32  years 

222,907,486 

6,965,859 

12,000,000* 

Zinc 

13  years 

201,225,509 

15,478,885 

19,985,653 

$4,357,015,676        $89,665,516        $106,499,853 

Taken  altogether,  the  output  of  1916  shows  a  gain  of  nearly 
19%  over  the  average  of  the  term.     In  detail  there  were  gains 

*  Estimated. 


154  INTERNATIONAL  MINING  LAW 

of  10%  in  silver,  175%  in  copper,  72%  in  lead,  29%  in  zinc  and 
49%  in  tin.     Against  these  there  was  only  a  loss  of  17%  in  gold. 

But  these  conclusions,  being  based  on  values  as  measured  in 
terms  of  gold,  instead  of  on  quantity  in  terms  of  any  weight  unit, 
are  not  truly  representative  of  the  condition  of  the  industry, 
because  of  the  abnormal  prices  which  all  the  metals  except  gold 
have  commanded  during  the  last  three  years  of  the  term,  coupled 
with  the  very  serious  loss  in  the  purchasing  power  of  the  yellow 
metal.  To  secure  a  better  basis  for  a  comparison  of  the  Aus- 
tralasian results  with  those  of  the  other  principal  mining  regions 
of  the  world,  the  following  table  has  been  prepared,  dating  also 
from  1851  but  terminating  with  1913,  and  so  avoiding  the  high 
figures  of  war  times.  This  makes  a  more  nearly  correct  exhibit 
both  in  general  and  in  detail,  though,  as  just  stated,  no  figures 
based  on  values  instead  of  quantities  can  be  regarded  as  accurate, 
as  will  now  be  made  clear. 

The  peak  of  gold  production  in  this  field  was  reached  in  1903, 
when  the  output  had  a  value  of  $87,462,252.  Since  then  there 
has  been  a  steady  decline  of  more  than  50%,  which  may  be  con- 
sidered very  serious  in  view  of  the  loss  of  purchasing  power  of 
the  metal  during  the  last  twenty  years. 

Tin  production  was  at  its  best  in  1906,  when  the  product 
(mainly  from  Tasmania)  sold  for  $5,781,944.  This  figure  has 
not  since  been  equalled,  though  the  price  of  the  metal  has  ad- 
vanced from  $600  per  ton  in  that  year  to  $880  in  1916. 

In  the  item  of  copper  the  value  of  the  product  of  1916  exceeded 
that  of  the  best  previous  year  by  only  $2,353,872.  But  mean- 
time the  price  of  the  metal  had  advanced  from  20  cents  per 
pound  to  30  cents,  corresponding  to  a  decrease  in  the  quantity 
at  the  last  date  as  compared  with  the  amount  recovered  during 
the  best  year. 

In  1892  the  silver  product  of  Australasia  had  a  value  of  $17,- 
375,677,  and  the  average  price  of  the  year  was  80  cents  per  fine 
ounce.  In  1906  the  lead  output  sold  for  $11,629,135  on  the 
basis  of  a  price  of  $112,  per  short  ton  for  the  metal.  The  peak 
of  zinc  production  was  reached  in  1909  when  the  output  yielded 


BRITISH  AUSTRALASIAN  MINING  LAW 


155 


$30,367,038,  the  average  price  for  the  year  having  been  $110 
per  short  ton.  These  figures  of  output  have  not  since  been 
equalled,  though  meantime  in  each  case  except  silver  the  market 
value  of  the  metal  had  greatly  increased,  prices  in  1916  having 
been  63  cents  per  ounce  for  silver,  $136  per  short  ton  for  lead 
and  $200  per  short  ton  for  zinc. 

It  is  clear  therefore  that  the  mining  industry  in  Australasia 
is  not  in  as  flourishing  a  condition  as  might  be  expected  from  the 
known  mineral  resources  of  that  part  of  the  world,  and  this 
unfortunate  state  of  affairs  may  perhaps  be  fairly  ascribed  to  the 
nature  of  the  laws  under  which  it  is  compelled  to  operate. 


Australasia,  1851  to  1913  (inclusive):  New  South  Wales,  New  Zealand,  Queensland,  South 
Australia,  Tasmania,  Victoria  and  West  Australia 


Metal 

Term 

Years 
in 
term 

Total  product 
of  term 

Average 
annual 
product  dur- 
ing term 

Product  of 
1913 

Gain  (  +  ) 
or  loss  (  —  ) 
in  1913  as 
compared 
with 
average 

Gold  

1851  to  1913 

63 

$3,076,222,339 

$48,828,926 

$52,781,525 

+     8% 

Tin  

1872  to  1913 

42 

136,820,740 

3,257,636 

4,749,759 

+  46% 

Copper.  .  .  . 

1879  to  1913 

35 

243,013,438 

6,943,241 

15,925,199 

+  129% 

Silver  

1880  to  1913 

34 

257,961,441 

7,587,101 

10,898,115 

+  44% 

Lead. 

1885  to  1913 

29 

189,578,551 

6,537,191 

11,152,240 

+  70% 

Zinc  

1904  to  1913 

10 

151,854,020 

15,185,402 

23,559,424 

+  55% 

$4,055,450,529 

$88,339,497 

$119,066,262 

+  35% 

CHAPTER  IX 

THE   CANADIAN    SYSTEM  OF   MINING  LAW.     DIGEST  OF  THE 
MINING    LAWS    OF   BRITISH    COLUMBIA,    ALBERTA,    NEW 
BRUNSWICK,  NEWFOUNDLAND,  NOVA  SCOTIA,  NORTH- 
WEST TERRITORY,   MANITOBA,  ONTARIO,  QUEBEC, 
SASKATCHEWAN  AND  YUKON  TERRITORY.    RE- 
SULTS OF  THE  SYSTEM.    STATISTICS  OF 
PRODUCTION  FROM  1858  TO  1916 

THE  CANADIAN  SYSTEM 

The  mining  laws  of  the  various  provinces  of  the  Dominion 
of  Canada,  and  of  the  Crown  Colony  of  Newfoundland,  are  all 
constructed  on  the  basis  of  what  may  be  called  the  modern 
British  theory  of  the  business  of  mining;  and  while  differing 
much  in  detail,  have  a  strong  family  resemblance,  and  may 
properly  be  considered  together.  This  underlying  doctrine  is  to 
the  effect  that  mining,  being  an  occupation  which,  by  its  very 
nature,  calls  for  the  investment  of  more  or  less  capital  in  develop- 
ment and  equipment,  the  laws  regulating  it  should  be  so  drawn 
as  to  give  capital  all  the  opportunity  it  could  fairly  ask  for. 
But  while  doing  so  the  rights  of  the  State  as  a  whole  must  also 
be  properly  guarded,  to  prevent  the  development  of  conditions 
as  to  property  of  this  kind  which  exist  in  the  old  country,  and 
which,  in  all  parts  of  the  Empire  are  regarded  as  unfortunate, 
and  inimical  to  progress  in  the  industry. 

The  provinces  of  British  Columbia,  Ontario,  Quebec,  New 
Brunswick  and  Nova  Scotia,  and  the  Crown  colony  of  Newfound- 
land have  each  its  own  mining  code,  while  what  is  known  as 
the  Dominion  code  governs  operations  in  Manitoba,  Saskatche- 
wan, Alberta,  the  Northwest  Territory,  and  the  Yukon  Territory. 

156 


CANADIAN  SYSTEM  OF  MINING  LAW  157 

In  all  of  these  the  paramount  ownership  of  the  state  in  metalli- 
ferous minerals  existing  on  the  public  domain,  and  also  on 
privately  owned  land  except  where  the  mineral  rights  have  ex- 
pressly passed  in  the  deed  of  grant,  and  except  on  tracts  alienated 
prior  to  certain  dates,  is  definitely  asserted.  In  British  Colum- 
bia, Ontario,  Quebec,  and  Newfoundland  patents  (called  Crown 
Grants)  may  be  secured,  but  in  Quebec  the  right  is  retained  by  the 
government  to  insist  upon  annual  labor  on  all  such  grants, 
and  in  Ontario  the  ownership  of  the  timber  is  reserved.  Else- 
where, Only  leaseholds  are  obtainable,  so  that  it  is  hoped  and 
believed  that  the  rise  and  growth  of  large  landed  estates 
containing  undiscovered  mineral  resources  will  be  prevented 
throughout  British  America,  except  in  British  Columbia  and 
Newfoundland. 

Presumably,  with  the  intent  to  encourage  discovery,  all  the 
codes  except  that  of  the  Dominion  provide  regulations  for  that 
line  of  activity  called  prospecting,  while  in  the  case  of  the  Domin- 
ion the  same  end  has  been  sought  by  relieving  the  prospector 
from  most  of  the  obligations  that  are  imposed  upon  him  in  the 
other  provinces.  But  when  some  of  these  laws  are  critically 
examined  it  becomes  clear  that  the  framers  of  them  have  assumed, 
in  accordance  with  the  British  doctrine,  that  prospecting  was  a 
business  which,  like  mining,  required  the  backing  of  capital, 
and  accordingly  the  occupation  is  governed — excepting  in  the 
Dominion  code — by  rules  and  regulations  which  practically 
bar  the  prospector  (as  the  character  is  known  in  America)  from 
the  field.  Thus,  in  Newfoundland,  one  may  freely  search  and 
dig,  but  may  not  locate  a  claim,  or  take  away  and  sell  anything 
found,  until  a  prospecting  license  has  been  purchased;  while 
in  Nova  Scotia,  a  claim  may  be  located  without  a  license,  but 
digging  or  the  removal  of  anything  found  is  strictly  prohibited 
until  one  is  secured.  In  Ontario,  Quebec,  and  British  Columbia 
licenses  are  required  before  either  digging  or  claim-staking  can 
be  done,  and  heavy  penalties  are  provided  for  violating  this 
rule.  As  licenses  in  these  provinces  cost  all  the  way  from  $5.00 
to  $10,  are  good  for  one  year  only,  and  permit  of  the  location  of 


158  INTERNATIONAL  MINING  LAW 

but  one  claim  in  Newfoundland,  Nova  Scotia,  and  New  Bruns- 
wick, three  in  Ontario  and  five  in  Quebec,  it  is  evident  that  the 
belief  was  held  by  most  of  the  lawmakers  that  prospectors  are 
people  of  some  means,  or  else  are  in  the  habit  of  securing  the 
backing  of  capital  before  engaging  in  exploration.  In  fact  it  is 
impossible  to  study  the  provisions  of  these  laws  (except  in  the 
case  of  the  Dominion)  without  reaching  the  conclusion  that 
they  have  been  drawn  and  enacted  with  only  a  partial  knowledge 
of  the  exigencies  of  that  most  important  part  of  the  mining 
industry  which  has  to  do  with  the  discovery  of  new  ore  deposits. 
Perhaps  the  best  example  of  this  misconception  is  to  be  found 
in  those  sections  of  the  Nova  Scotia  code  which  are  supposed  to 
provide  for  the  rights  and  necessities  of  the  individual  who  is 
moved  to  go  out  into  the  hills  and  search  for  gold  in  the  beds  of 
streams  or  in  the  bars  along  their  courses.  It  will  be  unnecessary 
and  even  dangerous  for  such  a  party  to  carry  with  him  any 
tools,  for  while  he  may  freely  look  over  the  country,  even  where 
the  surface  rights  have  been  alienated,  he  dares  not  dig  until 
he  has  taken  out  a  prospecting  license,  and  he  cannot  take  out 
this  until  he  is  prepared  to  describe  with  accuracy — as  to  metes 
and  bounds — the  area  upon  which  he  wishes  to  dig,  for  the  license 
calls  for  full  details  on  this  point,  is  good  for  three  months  only, 
and  costs  $4.00.  Consequently  no  time  must  be  lost  or  mistakes 
made.  But  if  under  these  rather  discouraging  conditions  he 
does  decide  upon  staking  out  a  piece  of  ground  that  appears  to 
contain  pay  gravel  within  its  limits,  and  has  taken,  we  will 
suppose,  the  minimum  sized  claim  of  40  acres,  it  is  interesting 
to  note  the  responsibilities  he  has  assumed.  Before  sticking 
a  pick  into  the  ground  he  must  pay  for  the  license  at  the  rate 
of  10  cents  per  acre  for  the  90-day  s'  privilege.  Having  done 
this  he  may  go  to  work,  and  at  the  end  of  the  term,  if  he  has 
found  enough  encouragement  to  incline  him  to  continue,  he 
must  first  pay  the  royalty  of  2%  on  the  gross  value  of  all  gold 
so  far  recovered,  and  then  $250  in  cash,  whereupon  he  will  be 
granted  a  document  called  a  " prospecting  license"  which  gives 
him  the  right  to  operate  his  claim  for  the  succeeding  12 


CANADIAN  SYSTEM  OF  MINING  LAW  159 

months,  in  consideration  of  a  further  cash  payment  of  $160, 
being  50  cents  per  unit  area  of  one-eighth  of  an  acre  on  his 
40-acre  tract. 

In  New  Brunswick  the  provisions  of  the  law  seem  equally 
severe.  There,  however,  the  prospector  is  allowed  to  stake  off 
his  claim  before  applying  for  a  license,  but  prohibited  from  doing 
any  digging  upon  it  until  the  license  is  issued.  But  at  this 
point  he  must  be  very  careful,  for  there  are  two  varieties  of  this 
document.  One  is  entitled  a  " License  to  Prospect"  but  is  good 
only  for  gold  and  silver.  The  other  is  called  a  "  License  to 
Search"  and  covers  all  the  other  metals.  Not  having  been 
allowed  so  far  to  do  any  digging,  and  so  not  knowing  just  what 
he  will  find  when  he  does  get  to  work,  he  probably  must  take 
out  both,  to  cover  all  contingencies.  But  neither  of  these  gives 
him  the  right  to  remove  and  sell  anything  of  value  that  might 
be  found  in  case  he  takes  the  desperate  chances  and  begins 
digging.  For  this  privilege  he  must  apply  for  still  another 
document,  called  a  " License  to  Work."  If  the  prospector  has 
located  the  maximum  sized  claim  of  12J^  acres,  his  license  to 
prospect  will  have  cost  him  $27.50  and  is  good  for  12  months. 
The  license  to  search  costs  $20,  is  good  for  18  months  and  enlarges 
his  area  of  activity  to  a  tract  five  miles  square,  but  gives  him  no 
exclusive  rights  therein,  and  must  be  surveyed  at  his  expense 
before  any  exploring  work  is  done.  The  license  to  work  costs 
$50,  is  good  for  two  years  and  carries  the  right  of  one  year's 
extension  at  a  further  fee  of  $25.  It  covers  any  area  desired  up 
to  640  acres,  to  be  selected  out  of  the  five  mile  tract,  with  pref- 
erence rights  in  making  the  selection. 

Under  the  law  in  Quebec,  where  the  prospecting  license  costs 
$10  and  is  good  for  12  months  only,  if  any  ore  is  found  no  right  is 
conferred  to  remove  and  realize  upon  it,  and  a  penalty  of  $200 
follows  a  violation  of  this  rule.  Thus  the  prospector  is  wholly 
prevented  from  making  his  work  pay  even  in  part  as  it  goes  along. 
However,  by  taking  out  a  second  permit  called  a  "  Mining  License," 
at  a  cost  of  $10,  and  paying  down  in  cash,  in  advance,  the  rental 
of  50  cents  per  acre  on  his  claim,  he  can  sell  or  treat  his  ore. 


160  INTERNATIONAL  MINING  LAW 

As  the  minimum  size  of  claim  in  this  province  is  forty  acres,  the 
right  to  realize,  after  making  a  discovery,  costs  $30. 

These  examples  illustrate — perhaps  in  an  extreme  way — a 
conception  of  the  nature  of  the  business  of  prospecting  which  it 
will  be  hard  for  the  American  miner  to  comprehend,  until  he 
grasps  the  idea  that  the  Canadian  prospector  is  assumed  to  be 
an  individual  in  the  employ  of  a  corporation.  For  such  the 
laws  are  excellent.  The  prospecting  areas  to  be  had  are  abun- 
dantly large,  the  times  allowed  for  exploration  are  ample,  and  the 
fees  and  charges  very  moderate,  in  fact  almost  negligible  from 
their  point  of  view. 

In  the  matter  of  the  steps  that  must  be  taken  in  the  acts  of  loca- 
tion and  recording,  and  the  requirements  to  maintain  title  during 
the  period  usually  devoted  by  a  discoverer  of  a  new  ore  deposit  to 
making  such  explorations  as  are  necessary  to  enable  him  to 
decide  whether  or  not  his  find  is  going  to  be  worth  keeping,  the 
provisions  of  the  Canadian  laws  are  liberal,  but  very  expensive 
from  the  point  of  view  of  the  wandering  prospector,  and  indicate 
again  that  they  were  prepared  mainly  for  the  use  of  the  class 
who  have  money  to  invest,  instead  of  for  those  who  can  put  only 
their  time  and  labor  into  the  business.  Extralateral  rights  are 
now  nowhere  allowed,  although  they  were  in  British  Columbia, 
under  its  first  law — now  repealed — and  so  this  means  of  confer- 
ring more  or  less  of  a  selling  value  upon  an  undeveloped  dis- 
covery or  prospect  does  not  exist.  There  is  therefore  little 
incentive  to  individual  prospecting  through  out  the  whole  of 
British  North  America,  and  new  discoveries  during  the  last  20 
years  have  been  almost  entirely  the  result  of  accident,  as  in  the 
case  of  the  nickel-copper  deposits  of  Sudbury,  the  silver  lodes  of 
Cobalt,  and  the  gold  veins  of  Porcupine. 

The  mining  industry  in  Canada  is  nevertheless  already  of 
great  importance.  The  vast  area  of  primitive  rock  that  encir- 
cles Hudson  Bay  and  extends  northwest  to  the  Arctic  presents 
a  wonderful  field  for  exploration,  and  contains  undoubtedly  a 
great  number  and  variety  of  metalliferous  deposits  awaiting 
discovery  and  development.  The  severe  climate  will  not  pre- 


CANADIAN  SYSTEM  OF  MINING  LAW  161 

vent  this  if  the  mining  laws  are  of  such  a  nature  as  to  attract  the 
individual  pioneer  prospector.  The  experiences  of  British 
Columbia  and  the  Klondyke  indicate  what  may  be  expected  in 
the  future  under  like  conditions;  and  the  experiences  there  since 
the  laws  were  changed,  and  in  the  other  provinces  where  the 
incentive  to  prospecting  has  never  existed,  indicate  what  may 
be  expected  in  the  future.  Outside  of  British  Columbia  the 
history  of  discovery  in  Canada  has  been  spasmodic  rather  than 
steady. 

The  Dominion  code,  covering  as  it  does  such  a  very  large  area 
of  totally  unexplored  country,  and  allowing  free  prospecting, 
would  attract  the  individual  explorer  strongly  if  he  could  secure 
a  fee  simple  title  as  in  British  Columbia,  Ontario,  Quebec,  and 
Newfoundland,  and  still  more  powerfully  if  extralateral  rights 
were  accorded  to  lode  claims.  Without  these,  the  development 
promises  to  be  much  slower  than  that  of  Alaska,  where  the 
climatic  conditions  are  more  severe,  the  topography  more  rugged, 
and  the  available  area  of  primitive  rocks  very  much  less. 

The  Ontario  code  fails  to  attract  prospectors  because  of  the 
expensive  license  coupled  with  its  limited  location  privileges,  in 
spite  of  the  great  lure  of  a  fee  simple  title. 

In  British  Columbia  the  attempt  has  been  made  to  balance 
the  abolition  of  the  extralateral  right,  as  an  incentive  to  discovery, 
by  the  enlargement  of  the  lode  claim  area  to  a  square  of  1500 
feet,  but  the  initial  cost  of  the  license,  even  when  labeled  a  "Free 
Miner's  Certificate,"  has  barred  out  the  cashless  pioneer.  The 
other  provisions  of  the  law  are  excellent. 

In  the  rest  of  the  political  units  of  British  America  the  laws 
put  such  heavy  burdens  on  pioneer  mineral  explorers  that  the 
regions  have  been  practically  abandoned  by  them,  and  what 
remains  of  the  public  domain  is  rapidly  passing  under  private 
ownership  for  agriculture,  grazing,  forestry,  coal  and  iron  mining 
and  other  purposes,  as  have  the  lands  of  Europe,  where  vast 
mineral  wealth  yet  remains  undiscovered  because  of  the  unattrac- 
tive features  inevitably  connected  with  prospecting  over  land 
already  individually  owned. 


162  INTERNATIONAL  MINING  LAW 

BRITISH  COLUMBIA 

(Law  of  1897,  with  amendments  to  January  1st,  1917) 

This  Province  of  the  Dominion  of  Canada  holds,  for  the 
benefit  of  its  citizens  as  a  political  entity,  and  offers  for  disposal, 
under  the  terms  of  its  mining  law,  any  and  all  mineral  deposits 
of  all  kind  except  coal,  that  can  be  found  on,  in,  or  under  its 
remaining  public  domain;  also  any  (except  coal)  that  may  be 
found  under  the  surface  of  such  formerly  owned  parcels  of  the 
same  where  the  mineral  rights  have  been  reserved  when  surface 
rights  were  granted.  For  all  these,  under  proper  procedure, 
it  will  issue  Crown  Grant  (fee  simple  title)  if  desired. 

Any  individual  over  18  years  of  age,  who  desires  to  prospect  for 
mineral  deposits,  surface  or  underground,  must  first  take  out  a 
document  called  a  "Free  Miner's  Certificate,"  also  any  company 
organized  and  incorporated  for  mining  purposes.  The  cost  of 
this  certificate  for  an  individual  is  $5,  for  a  company  with  a 
capital  not  in  excess  of  $100,000,  $50;  for  a  company  with  a 
capital  in  excess  of  $100,000,  $100.  It  is  obtainable  from  any 
Gold  Commissioner  or  Mining  Recorder.  It  is  good  for  12 
months,  and  is  renewable  annually  at  the  same  cost.  The 
possession  of  it  gives  the  right  to  prospect,  locate  claims,  and 
carry  on  mining  operations.  Any  number  of  claims  may  be 
acquired  by  those  who  hold  one,  except  that  only  one  may  be 
located  on  the  same  vein,  or  in  the  same  valley  in  the  case  of  an 
alluvial  location. 

When  an  alluvial  claim  is  located  no  under  surface  or  rock 
mining  rights  are  created,  and  if  the  location  is  on  a  vein  or 
ore  deposit,  no  placering  rights  go  with  it.  Finally,  the  certifi- 
cate includes  an  individual  game  license. 

For  alluvial  or  placer  mining  the  claim,  when  laid  out  in 
the  bed  of  a  creek  is  1000  ft.  wide  and  250  ft.  long,  in  the  direc- 
tion of  the  creek.  If  on  a  bar  or  bench,  it  is  250  ft.  square.  But 
the  first  discoverer  of  a  new  placer  creek  is  allowed  to  take  up  an 
additional  claim  along  the  creek  which  can  be  600  ft.  long  by 
1000  ft.  wide.  For  underground  operations,  or  what  is  known 


CANADIAN  SYSTEM  OF  MINING  LAW  163 

generally  as  a  quartz  claim,  the  dimensions  are  1500  ft.  by  1500 
ft.  No  extralateral  rights  go  with  any  of  these  claims. 

The  location  acts  required  are  simple,  inexpensive,  and  effec- 
tive. Discovery  of  metal  or  mineral  is  a  necessary  preliminary 
to  a  valid  location  of  any  kind,  and  all  locations  must  be  laid 
out  as  nearly  rectangular  as  possible. 

Recording  is  required  within  15  days  of  date  placed  on  dis- 
covery stake,  if  location  is  within  15  miles  of  the  Recorder's 
office.  An  extra  day  is  allowed  for  each  additional  10  miles  of 
distance,  or  fraction  thereof.  The  recording  acts  are  simple, 
but  require  the  personal  presence  of  the  claimant  at  the  Re- 
corder's office.  The  fee  is  $2.50.  After  record  is  made, 
conveyancings  acts  of  all  kinds  are  absolute. 

Maintenance  requirements.  In  the  case  of  placer  claims  the 
"Free  Miner's  Certificate"  must  be  renewed  annually,  but  the 
cost  of  doing  so  is  reduced  to  $2.50.  Also,  at  the  same  time  the 
claim  must  be  again  recorded.  During  the  working  season 
the  claimant  must  prosecute  continuous  work,  or  put  a  man  in 
his  place.  A  total  of  72  hours  of  cessation  is  allowed,  or  nine 
days  of  eight  hours  each.  The  beginning  and  end  of  the  work- 
ing season  are  determined  and  publicly  announced  by  the  Gold 
Commissioner  of  the  district.  For  quartz  claims  the  "certifi- 
cate" must  be  renewed  annually  at  a  cost  of  $5,  and  during  the 
year  labor  to  the  value  of  $100  must  be  performed  and  affidavit 
of  same  made  and  recorded.  The  recording  fee  is  $2.50.  Or, 
in  lieu  of  labor,  $100  in  cash  may  be  paid  in  to  the  Recorder. 
Also,  during  the  first  year  of  possession,  the  claim  must  be  sur- 
veyed by  the  provincial  surveyor,  at  claimant's  cost.  But  this 
expense,  up  to  the  value  of  $100,  is  allowed  on  annual  labor 
account. 

No  royalties  of  any  kind  are  required. 

Crown  Grants.  These  documents,  which  are  the  equivalent 
of  a  U.  S.  Patent,  and  convey  a  fee  simple  title,  are  not  given 
on  placer  claims,  but  a  Lease  for  any  period  up  to  20  years  may 
be  obtained  for  the  latter  by  arrangement  with  the  district  Gold 


164  INTERNATIONAL  MINING  LAW 

Commissioner,  on  terms  approved  by  the  Lieutenant  Governor 
in  Council;  also  for  water  rights. 

For  quartz  claims,  after  holding  the  same  for  five  years,  and 
completing  five  annual  labor  requirements  (or  making  five  cash 
payments),  together  with  affidavits  and  records  of  the  same, 
the  claimant  is  entitled  to  apply  for  a  "  Certificate  of  Improve- 
ment," which,  if  granted,  relieves  him  of  all  further  annual 
labor  requirements,  and  places  him  in  a  position  where  he  can 
make  application  for  Crown  Grant.  During  this  five  year 
period  the  title  to  a  quartz  claim  is  regarded  as  an  annual  lease, 
renewable  indefinitely,  upon  compliance  with  requirements 
as  stated.  There  is  no  obligation  to  apply  for  Crown  Grant. 

The  procedures  for  securing  Crown  Grant  are  simple  and 
inexpensive.  The  fee  upon  issuance  of  same  is  $25  for  under- 
ground rights  and  $10  for  surface  rights,  making  a  total  of  $35 
for  a  tract  1500  ft.  square,  containing,  roughly,  50  acres. 

DOMINION  OF  CANADA 

(Law  of  1913,  with  amendments  to  January  1st,  1917) 

The  provisions  of  the  Dominion  Mining  Law  cover  only  the 
Provinces  of  Manitoba,  Saskatchewan,  Alberta,  the  Northwest 
Territory  and  the  Yukon  Territory.  Within  these  limits  the 
Government  asserts  its  paramount  ownership  of  all  mineral 
deposits  of  all  kinds  on  the  public  domain,  otherwise  known  as 
Crown  Land;  and  will  not  sell  the  same.  Instead,  it  grants 
annual  leases  for  specified  areas.  These  are  of  two  kinds,  namely, 
for  quartz  or  underground  mining,  and  for  surface  or  placer 
mining. 

Prospecting  is  free  to  all  individuals  over  18  years  of  age, 
subjects  or  aliens,  male  or  female.  No  license  is  required.  Dis- 
covery of  metal  or  mineral  is  necessary  before  planting  stakes. 
Location  acts  are  simple,  inexpensive,  and  effective.  An  un- 
limited number  of  claims  may  be  located,  but  only  one  on  a 
stream,  or  on  the  same  vein.  But  the  discoverer  of  a  new  placer 
creek  is  entitled  to  three  extra  claims. 


CANADIAN  SYSTEM  OF  MINING  LAW  165 

Recording  must  be  effected  within  10  days  of  date  of  planting 
discovery  stake  in  the  case  of  placer  claims,  and  within  15  days 
in  the  case  of  quartz  claims,  provided,  in  each  case,  the  claim  is 
within  10  miles  of  the  Recorder's  office.  An  extra  day  is  allowed 
for  each  additional  10  miles  of  distance,  or  fraction  thereof. 
Recording  fee  is  $5,  on  payment  of  which  a  certificate  is  issued 
good  for  12  months,  conveying  exclusive  mining  rights  and 
privileges,  conditioned  upon  the  performance  during  the  year 
of  $100  worth  of  labor  on  the  claim,  and  the  recording  of  an 
affidavit  evidencing  the  same.  This  certificate  is  renewable  from 
year  to  year  indefinitely,  on  the  same  terms. 

For  underground  operations,  the  claim  area  is  1500  feet  square; 
for  surface  operations,  500  feet  in  the  valley  or  alongside  of  a 
stream,  and  1000  feet  wide.  All  claims  must  be  laid  out  as 
nearly  rectangular  as  possible,  and  orientated.  There  are 
no  extralateral  rights,  and  no  royalties  of  any  kind. 

Conveyancing  rights  are  complete  after  recording. 

NEW  BRUNSWICK 

(Law  of  1903,  with  amendments  to  January  1st,  1917) 

Metals  and  minerals  of  all  kinds,  on  both  public  and  private 
lands,  are  the  property  of  the  State,  and  are  obtainable  for 
mining  purposes  by  individuals  or  corporations  only  under 
leasehold  title.  When  they  are  discovered  or  suspected  on 
areas  the  surface  rights  of  which  have  been  alienated,  the  miner 
or  prospector  who  desires  to  explore  and  excavate  must  not  only 
apply  to  the  Government  for  such  rights,  but  must  come  to  an 
understanding  with  the  surface  owner.  If  the  latter  is  unreason- 
able in  his  demands,  the  law  provides  a  procedure  by  which,  at 
some  little  expense,  he  may  be  compelled  to  grant  fair  terms. 

Prospecting,  if  by  that  is  meant  merely  looking  over  apparently 
unoccupied  or  unused  areas  of  the  country  for  outcrops  or  promis- 
ing indications  of  the  presence  of  valuable  minerals,  either  alluvial 
or  underground,  is  free.  But  no  excavating  work  of  any  kind 
is  permitted  without  first  taking  out  a  license.  However,  the 


166  INTERNATIONAL  MINING  LAW 

law  specifically  provides  that  if  the  prospector  finds  "indications" 
on  what  seems  to  be  unoccupied  land,  he  may  stake  off  a  tract 
of  a  certain  size,  and  in  a  certain  way  hereinafter  described. 
Then,  within  a  week,  plus  24  hours  additional  for  each  15  miles  of 
distance  between  the  tract  and  the  office  of  the  Surveyor  General 
at  Fredericton,  the  capital  of  the  Province,  he  must  appear  before 
that  official,  and  apply  for  a  " License  to  Prospect,"  which  docu- 
ment, when  obtained,  gives  him  the  right  to  dig  and  explore. 
There  are,  however,  several  kinds  of  licenses.  The  one  just 
mentioned  gives  him  the  right  for  gold  and  silver  only.  Another, 
called  a  " License  to  Search,"  covers  all  other  metals  and  minerals. 
Neither  permits  him  to  remove  and  sell  anything  found.  For 
that  it  is  necessary  to  obtain  another  kind,  called  a  "License  to 
Work." 

The  unit  area  for  mining  property  of  all  kinds  is  a  tract  of 
land  rectangular  in  shape,  magnetically  orientated,  and  measur- 
ing 150  feet  on  an  east  and  west  line,  and  250  feet  on  a  north  and 
south  line.  Any  number  of  these  between  10  and  100,  assembled 
in  a  compact  block,  whose  length  does  not  exceed  twice  its 
breadth,  may  be  applied  for  as  a  prospecting  tract,  and,  if  not 
lying  within  the  limits  of  an  already  proclaimed  mining  field,  will 
probably  be  allowed. 

The  "License  to  Prospect"  is  good  for  any  period  up  to  12 
months,  at  the  discretion  of  the  Surveyor  General.  It  costs, 
for  the  first  10  units  of  its  area,  50  cents  per  unit;  for  any  further 
number  up  to  100,  25  cents  per  unit.  Thus  a  tract  containing 
24  units,  which  would  correspond  closely  to  the  American  mining 
claim  of  approximately  20  acres,  would  cost  $8.50.  Any  desired 
number  of  such  areas  may  be  applied  for  under  one  license,  and 
the  prospector's  title  to  the  same  holds  good  during  the  life  of 
his  license,  which  latter  may  be  renewed  once,  for  not  over  12 
months  at  a  cost  half  of  that  paid  for  the  first  term. 

The  "License  to  Search"  is  good  for  18  months.  It  covers  all 
metals  and  minerals  except  gold  and  silver  when  occurring  by 
themselves,  but  includes  them  when  they  are  associated  with 
other  metals*  The  maximum  area  allowed  under  this  form  of 


CANADIAN  SYSTEM  OF  MINING  LAW  167 

permitus  five  square  miles,  which  must  be  laid  out  in  a  correctly 
orientated  rectangular  block,  not  over  2%  miles  in  length.  The 
cost,  on  application,  is  $20.  It  must  be  surveyed  at  the  expense 
of  the  applicant,  and  full  reports  from  time  to  time  made  to  the 
Surveyor  General,  giving  details  of  progress  of  exploratory  work. 
This  permit,  however,  does  not  convey  an  exclusive  right  to  the 
area  so  laid  out.  Other  similar  licenses  may  be  granted  for  the 
same  ground.  But  the  first  licensee  has  priority  of  right  in  mak- 
ing final  selection  from  the  tract.  The  selection  may  be  made  at 
any  time  during  the  term  of  the  permit,  and  may  consist  of  any 
part  of  the  tract  not  to  exceed  one  square  mile  in  area.  But  it 
must  be  of  rectangular  shape,  orientated  magnetically,  and  not 
over  2J^  miles  in  length.  At  the  time  of  selection  the  applicant 
must  apply  for  a  "License  to  Work,"  accompanying  the  applica- 
tion with  a  survey  of  the  selected  tract,  and  a  fee  of  $50. 

The  " License  to  Work"  is  good  for  two  years,  with  privilege 
of  one  year's  extension  at  half  the  cost  of  the  first  term.  Within 
this  three  years  genuine  mining  must  begin,  and  must  be  continu- 
ously prosecuted  thereafter.  A  "License  to  Work"  may  be 
applied  for  without  previously  taking  out  a  "License  to  Search." 
Any  holder  of  a  "License  to  Work,"  is  entitled,  at  any  time  during 
its  period,  to  call  for  a  Lease. 

In  licenses  of  all  three  kinds,  if  any  part  of  the  selected  areas 
is  on  privately  owned  land,  the  applicant  must  make  arrange- 
ments with  owner  of  same  for  surface  rights,  must  give  bond 
to  indemnify  him  for  possible  damages,  and  to  the  government 
that  the  required  reports  will  be  made,  and  the  royalties  paid 
when  due. 

Leaseholds.  Any  number  of  contiguous  unit  areas  that  make 
up  a  rectangular  block  with  sides  magnetically  orientated,  may 
be  applied  for  as  a  leasehold  for  mining  purposes.  The  applica- 
tion must  be  accompanied  by  a  deposit  of  $2.00  per  unit  area, 
which  is  credited  as  the-  rental  for  the  first  year.  Thereafter 
the  lease  is  renewable  from  year  to  year  at  a  cost  of  50  cents  per 
unit  area,  payable  in  advance. 

All  leases  are  made  out  for  a  term  of  20  years,  but  may  be 
12 


168  INTERNATIONAL  MINING  LAW 

surrendered  at  any  time.  They  also  may  be  declared  forfeited 
at  any  time  in  the  event  of  default  in  payment  of  rental  or  royalty, 
or  of  the  fulfillment  of  the  annual  labor  requirement. 

The  number  of  days  of  labor  required,  per  annum,  to  maintain 
the  validity  of  the  lease,  is  determined  in  each  case  by  the 
Lieutenant  Governor  in  Council,  and  is  wholly  a  matter  of  his 
discretion. 

Leases  may  be  renewed  at  the  option  of  the  Government  at  the 
end  of  the  20-year  term,  for  a  second  period  of  equal  length. 
Also  for  a  third  and  fourth  period,  but  for  no  longer,  under  any 
circumstances. 

On  all  leases  quarterly  reports  are  required,  giving  the  number 
of  days  of  labor  employed  during  that  term,  the  tons  of  ore  raised, 
the  party  or  parties  to  whom  the  same  were  sold,  with  details 
of  each  parcel,  the  tons  of  ore  milled  and  yield  of  same  in  metal, 
and  the  total  value  of  the  products  of  all  kinds. 
Royalties. 

On  gold  and  silver,  2%%  of  the  gross  value  recovered. 

On  copper,  4  cents  per  unit  (1%)  per  ton  of  2352  Ibs. 

On  lead,  2  cents  per  unit,  per  ton  of  2240  Ibs. 

On  tin  and  gemstones,  5%  of  the  gross  selling  value. 

On  other  metals  and  minerals,  as  may  be  determined  by  the 
Surveyor  General  and  the  Lieutenant  Governor-in-Council. 

NEWFOUNDLAND 

(Law  of  1903,  with  amendments  to  January  1st,  1917) 

Mineral  deposits  of  all  kinds,  whether  occurring  in  public  or 
private  lands,  are  the  property  of  the  State. 

Prospecting  is  free,  without  preliminary  license.  The  pros- 
pector may  make  any  diggings  or  excavations  necessary  to  find 
or  expose  mineral  (except  on  land  already  covered  by  buildings 
or  growing  crops),  but  may  take  away  samples  for  assay  only. 

Such  operations  do  not  confer  any  exclusive  right  to  prospect 
over  any  defined  area,  or  lay  the  foundation  of  any  right.  But 
as  soon  as  a  discovery  stake  is  erected,  upon  which  the  name  of 


CANADIAN  SYSTEM  OF  MINING  LAW  169 

the  discoverer  and  the  date  of  discovery  is  inscribed,  the  pros- 
pector acquires  the  preferential  right  to  apply  to  the  Minister  of 
Mines  for  a  license  to  locate  a  claim. 

This  application  must  be  made  within  two  months  of  the  date 
inscribed  on  the  discovery  stake;  otherwise  the  right  lapses,  and 
the  ground  may  be  applied  for  by  another. 

The  fee,  with  application,  is  $10.00. 

This  license  permits  the  holder  to  locate  one  claim,  and  to 
enjoy  the  exclusive  right  to  explore  underground,  within  its  boun- 
dary lines,  for  12  months.  The  maximum  size  of  the  claim  is  2640 
ft.  by  5280  ft.,  equal  to  320  acres.  Its  shape  must  be  that  of  a 
parallelogram.  Its  possession  conveys  no  surface  rights  what- 
ever, no  extralateral  underground  rights,  and  no  rights  to  remove 
and  realize  upon  ore  found. 

At  any  time  within  this  12  months  the  holder  can  call  for  a 
99-year  lease,  at  a  rental  of  $20  for  the  first  year,  $30  each  for  the 
next  five  years,  $50  each  for  the  next  five  years,  and  $100  each  for 
the  remaining  years  of  the  term.  At  any  time  during  the  period 
of  the  lease  it  is  forfeited  automatically  by  failure  to  pay  the 
rental  when  due.  Also,  at  any  rental-payment  date  the  Govern- 
ment will  accept  in  full  satisfaction  for  unmatured  rental  a  sum 
equivalent  to  its  value  at  the  time,  on  the  basis  of  3%  interest 
per  annum.  The  lease  conveys  mining  rights  to  all  minerals 
found  vertically  under  the  surface  within  boundary  lines. 

To  obtain  necessary  surface  rights  for  mining  purposes,  the 
claimholder  may  select  a  tract  of  any  shape,  and  of  any  size  up  to 
50  acres,  within  the  lines  of  his  claim,  provided  the  same  is  not 
already  in  use;  and  upon  marking  its  boundaries,  and  delivering 
diagram  of  same  to  the  Minister  of  Mines,  he  acquires  the  use  of 
the  area  for  mining  purposes,  during  the  life  of  his  lease. 

Annual  rental  on  leasehold  premises  is  payable  in  advance. 

Fee  simple  title  is  granted  to  any  lessee,  on  a  location  not 
exceeding  320  acres,  who  shows  that  during  the  first  five  years 
of  his  occupancy  he  has  expended  not-  less  than  $6000  for  surface 
or  subterranean  (or  both)  bona  fide  mining  work,  by  which  not 
less  than  10,000  cubic  yards  of  rock  have  been  excavated. 


170  INTERNATIONAL  MINING  LAW 

All  mining  property  remains  in  perpetuity  open  at  all  reason- 
able hours  and  times  to  duly  authorized  government  officials, 
or  their  representatives,  and  all  mine  operators  must  keep  books 
of  account,  which  also  must  be  held  open  for  official  inspection. 

No  royalties  of  any  kind  are  required. 

NOVA  SCOTIA 
(Law  of  1911,  with  amendments  to  January  1st,  1917) 

Prospecting,  when  confined  simply  to  looking  around,  is  free 
on  all  public  and  private  lands  not  already  occupied  or  in  use, 
so  long  as  no  digging  is  attempted.  During  such  preliminary 
inspections,  if  any  promising  indications  are  found,  a  claim  may 
be  staked  and  a  discovery  post  erected,  upon  which  the  name  of 
the  discoverer  and  the  date  of  the  discovery  should  be  inscribed. 
If  within  15  miles  of  the  office  of  the  nearest  Mining  Commis- 
sioner, application  for  digging  license  must  be  made  within  seven 
days.  An  additional  day  of  24  hours  is  allowed  for  each  addi- 
tional 15  miles  of  distance  or  fraction  thereof. 

Digging  Licenses  are  of  three  kinds,  viz.,  "  Alluvial  License," 
covering  only  surface  gravel  deposits,  such  as  are  commonly 
known  as  placers;  " Prospecting  License,"  covering  only  veins 
or  deposits  of  gold  or  silver — or  both — in  rock  in  place;  and 
" License  to  Search,"  covering  all  other  metals  or  minerals  in 
rock,  except  coal.  Applications  for  any  one  of  these  must  be 
made  in  person  and  in  writing  on  a  specified  blank,  and  must 
describe  the  area  desired  and  the  metal  or  metals  or  minerals  ex- 
pected to  be  found.  If  a  license  is  granted,  a  survey  at  the  cost 
of  the  applicant  may  be  required.  If  the  area  is  on  alienated  land 
a  suitable  bond  must  be  given  to  reimburse  the  owner  for  possible 
damages.  All  licensees  must  keep  books  of  account,  and  may 
be  called  upon  at  any  time  to  exhibit  them.  All  licenses  in 
good  order  may  be  transformed  at  any  time  into  leases,  at  the 
option  of  the  licensee,  upon  compliance  with  the  requirements 
or  may  at  will  be  abandoned. 

The  unit  area  is  a  rectangle  measuring  250  ft.  and  150  ft. 


CANADIAN  SYSTEM  OF  MINING  LAW  171 

on  its  sides,  and  containing  therefore  about  eight-tenths  of  an 
acre.  All  areas  for  prospecting  or  mining  purposes  must  be 
multiples  of  this  unit,  compacted  into  one  block. 

The  Alluvial  License  is  good  for  three  months,  and  can  be  ob- 
tained only  between  March  31st  and  December  1st.  With  it  a 
claim  containing  up  to  500  unit  areas  may  be  filed.  The  filing 
fee  is  10  cents  per  unit  area,  and  to  maintain  possession  the 
claimant  must  perform  40  cents'  worth  of  labor  per  unit  during 
the  three  months'  term.  At  its  end,  if  the  licensee  reports 
correctly  all  metal  or  ore  recovered,  and  pays  the  proper  royalty, 
then,  in  consideration  of  a  fee  of  $250,  a  license  good  for  an 
additional  term  of  12  months  will  be  granted. 

The  " Prospecting  License"  is  good  for  12  months  and  must 
cover  not  less  than  six  units  of  area,  nor  more  than  100  of  them. 
Its  cost  is  50  cents  per  unit  per  annum. 

The  "License  to  Search"  is  good  for  18  months,  and  with  it 
an  area  up  to  five  square  miles  may  be  located.  Its  cost,  payable 
on  application,  is  $30. 

All  these  preliminary  licensed  areas  may  be  converted  at  the 
option  of  the  claimant  at  any  time  into  leaseholds.  Until  that 
is  done  (except  in  the  case  of  alluvial  claims)  no  ore  selling  rights 
exist.  Leasehold  areas  are  of  two  kinds,  as  follows : 

For  gold  and  silver  quartz  mining.  The  size  is  unlimited, 
but  must  not  be  for  less  than  six  unit  areas  adjoining.  The 
application  fee  is  $2  per  unit.  The  maximum  term  allowable 
is  40  years.  The  rental  is  50  cents  per  unit  area  per  year  paya- 
ble in  advance.  The  labor  requirements  are  as  follows:  if 
the  area  contains  less  than  10  units,  40  shifts  of  work  per  unit 
per  annum;  if  it  contains  from  10  to  19  units,  30  shifts  per  unit 
per  annum;  if  it  contains  20  to  29  units,  20  shifts  per  unit  per 
annum;  and  if  it  contains  30  units  or  more,  then  10  shifts  per 
unit  per  annum.  A  royalty  of  2%  of  the  gross  value  of  the  gold 
and  silver  recovered  is  also  exacted.  This  form  of  leasehold  is 
assignable  only  with  the  consent  of  the  Governor  in  Council. 

For  all  other  metals  or  minerals.  The  maximum  area  allowa- 
ble for  copper  or  lead  mining  is  320  acres;  for  all  other  metals 


172  INTERNATIONAL  MINING  LAW 

160  acres.  The  fee  on  application  is  $50.  The  maximum  term 
is  20  years,  but  this  is  renewable  three  times  at  the  option  and 
on  the  terms  of  the  Governor  in  Council,  making  possible  a 
total  term  of  80  years.  The  annual  rental  is  $30,  after  the  first 
year,  payable  in  advance.  Royalties  are  as  follows:  on  copper, 
four  cents  per  unit  (1%)  per  ton  of  ore  at  mine  weights;  on  lead, 
two  cents  per  unit;  on  tin,  5 %  of  the  gross  value  in  the  ore.  This 
lease,  like  the  other,  is  assignable  only  with  the  consent  of  the 
Governor  in  Council.  The  Lessee  is  .required  to  monument 
all  his  corners  within  six  months  of  date  of  lease,  under  a  penalty 
of  $100  per  monument  in  default,  and  maintain  the  same  in 
good  order  during  term  of  lease. 

ONTARIO 

(Law  of  1908,  with  amendments  to  April  27th,  1917) 

The  Government  offers  the  fee  simple  title  for  mining  pur- 
poses, of  the  surface  and  underground  on  all  public  lands,  and 
on  all  private  land  alienated  since  May  6th,  1913,  except  certain 
reserved  tracts  mentioned  in  Sees.  34-43  of  the  Mining  Law, 
and  also  certain  forest  areas  referred  to  in  Sees.  44-47  of  the  same. 
On  the  last  mentioned,  leases  may  be  obtained. 

For  exploration,  and  development  purposes  it  issues  licenses. 
No  person  is  allowed  to  prospect  or  mine  on  lands  subject  to  the 
provisions  of  the  mining  law,  unless  18  years  or  over  in  age,  and 
in  possession  of  one  of  these  documents. 

A  mining  license  is  obtainable  from  the  Bureau  of  Mines  in 
Toronto,  or  from  any  mining  recorder.  It  costs  $5,  and  is  valid 
up  to  March  31st  after  its  issuance  date.  May  be  renewed 
annually  at  the  same  cost.  Gives  the  right  to  locate  up  to  three 
full  claims  per  annum,  in  any  one  or  more  of  the  mining  districts 
or  Divisions  of  the  Province. 

The  mining  claim  may  be  of  any  size  desired  up  to  40  acres. 
If  on  surveyed  land  it  must  conform  to  the  legal  subdivisions. 
If  not,  it  must  be  as  nearly  square,  and  its  boundary  lines 
orientated  as  correctly  as  possible  under  the  circumstances. 


CANADIAN  SYSTEM  OF  MINING  LAW  173 

In  certain  special  districts  no  claim  exceeding  20  acres  is  allowed. 
No  extralateral  rights  exist.  Discovery  of  mineral  before 
staking  is  required.  Location  acts  are  simple  and  effective. 
Survey  may  be  required. 

Record  must  be  made  within  15  days  of  the  date  on  the  dis- 
covery stake,  if  not  over  10  miles  from  Recorder's  office.  An 
extra  day  is  allowed  for  each  additional  10  miles  of  distance. 
The  record  must  be  endorsed  on  the  mining  license.  The  fee  is 
$10. 

During  the  60  days  following  record  the  claimant  remains 
simply  a  " licensee  of  the  Crown."  But  if,  by  the  end  of  that 
term  his  claim,  on  due  examination  by  the  district  Inspector, 
has  been  approved  as  "in  order,"  and  no  adverse  claim  has  been 
filed,  he  may  demand  a  "Certificate  of  Record,"  and  should  do 
so,  or  the  title  remains  questionable.  This  document  costs  $1.00. 

During  the  three  months  succeeding  the  issuance  of  the  Certi- 
ficate of  Record,  30  shifts  of  labor,  of  eight  hours  each,  are  required; 
during  each  of  the  first  and  second  12  months  following  the  end 
of  this  three-months'  period,  60  shifts  of  eight  hours  each;  during 
the  third  12  months,  90  shifts  of  eight  hours  each. 

Affidavit  of  same  must  be  filed  for  record  in  each  case, 
within  10  days  of  the  completion  of  the  work.  If  the  claimant 
has  adjoining  claims,  this  work  may  all  be  performed  on  any  one 
of  them. 

On  completion  of  these  labor  requirements,  if  after  due  exami- 
nation they  are  approved  by  the  district  inspector,  a  document 
called  a  "Certificate  of  Performance"  will  be  granted,  upon 
payment  of  $1.00. 

Transfers  of  title  of  unpatented  claims  are  allowed  at  any  stage 
of  the  process  of  making  title,  provided  the  same  are  recorded. 

If  the  claim  is  on  alienated  land,  the  claimant  must  arrange 
with  the  owner  for  such  surface  rights  as  he  may  need.  If  the 
demands  of  the  owner  are  considered  excessive,  he  can  be  com- 
pelled, at  some  cost,  to  agree  to  reasonable  terms. 

After  completing  the  three  years  and  three  months  of  labor 
as  above  specified,  and  within  the  nine  months  immediately 


174  INTERNATIONAL  MINING  LAW 

following,  application  for  patient  must  begin.  If  not,  a  fourth 
year  of  labor — on  the  terms  of  the  third — must  be  performed 
before  application  can  be  made.  The  proceedings  consist  of  a 
tender  of  the  price  of  the  land,  which  is  $3  per  acre  if  within 
surveyed  territory,  or  $2.50  per  acre  if  not;  if  on  land  whose 
surface  rights  have  been  alienated,  or  if  for  a  placer  claim,  the 
price  is  half  of  these  figures;  if  on  unsurveyed  land,  the  claim 
must  be  surveyed  by  a  Government  surveyor,  at  the  cost  of  the 
claimant.  The  patent  conveys  all  Crown  title  in  fee  simple, 
except  the  right  to  cut  and  use  the  pine  timber  within  its 
boundary  lines.  But  it  involves  the  obligation  on  the  part  of  the 
claimant  to  make  annual  reports  on  output  (in  weights  and 
values),  and  to  furnish  employment  statistics;  and  such  reports 
may  be  called  for  monthly,  by  the  Bureau  of  Mines,  at  its  option. 

Placer  claims  are  acquired,  maintained,  and  patented  under 
identical  conditions,  and  are  of  the  same  size. 

Prospecting  Areas.  If  for  any  reason  a  holder  of  a  mining 
license  desires  to  prospect  an  area  thoroughly  before  setting  dis- 
covery stakes,  he  can  secure  the  exclusive  right  to  do  so  for  a 
strip  of  ground  50  feet  wide  and  150  feet  long,  by  erecting  two 
stakes  called  prospecting  "  pickets"  at  the  center  of  the  extremities 
of  said  strip,  and  by  conforming  to  several  other  simple  require- 
ments. Thereafter,  "so  long  as  he  is  diligently  and  continuously 
prospecting"  on  the  said  strip,  he  is  entitled  to  "the  exclusive 
right  to  prospect,  and  to  make  a  discovery  thereon." 

QUEBEC 

(Law  of  1913,  with  amendments  to  date  of  January  1st,  1917) 

The  Quebec  mining  law  is  based  on  the  doctrine  that  mining 
rights  "constitute  a  property  under  the  soil,  separate  and 
distinct  from  that  of  the  soil  that  is  above  it."  It  announces  that 
the  government,  for  the  benefit  of  the  Province  as  a  political 
entity,  retains  the  title  to  all  such  rights  in  the  case  of  gold  and 
silver,  even  on  privately  owned  land,  and  in  the  case  of  all  other 
metals  and  minerals,  except  on  tracts  alienated  prior  to  July 
24th,  1880,  and  excepting  in  the  case  of  mining  grants  already 


CANADIAN  SYSTEM  OF  MINING  LAW  175 

made.  It  therefore  offers  to  sell  or  lease  mining  rights  to  first 
bona  fide  applicants,  to  be  used,  however,  solely  for  mining  pur- 
poses and  operations  legitimately  connected  therewith,  and 
under  the  provisions  of  the  law.  To  such  purchasers  or  lessees 
full  conveyancing  rights  pass. 

A  prospecting  license  is  required.  The  cost  is  $10.  It  is 
good  until  the  1st  of  January  following  date  of  issuance,  and  is 
renewable  annually  indefinitely,  at  the  same  price.  Under  it 
five  claims  per  year  may  be  located.  Discovery  and  corner 
stakes  are  required,  and  blazed  lines  from  discovery  to  corner  1 
and  thence  around  the  claim.  The  nearest  office  of  the  Depart- 
ment of  Mines  must  be  notified  of  the  location  " without  delay," 
so  that  details  of  the  same  may  be  registered  there  and  endorsed 
on  the  license.  Within  six  months  from  discovery  date  the 
claimant  must  perform  25  days  (of  eight  hours  each)  of  labor  on 
the  claim,  and  apply  for  a  mining  license,  or  the  claim  is  con- 
sidered forfeited.  Until  the  mining  license  is  obtained  no  metal 
or  mineral  may  be  taken  from  the  claim  except  in  the  way  of 
assay  samples,  under  a  penalty  of  $200  and  costs. 

The  unit  claim  is  a  rectangle,  containing  anywhere  from  40  to 
200  acres,  at  the  option  of  the  locator. 

The  mining  license  costs  $10  per  year,  plus  50  cents  per  acre 
per  year,  and  is  payable  in  advance.  During  this  period  the 
claimant  must  perform  25  days  (of  eight  hours  each)  of  labor  per 
40  acres  or  fraction  thereof,  must  have  the  claim  surveyed  if  on 
unsurveyed  public  land  or  on  private  land,  and  in  the  latter  case 
consent  of  the  surface  owner  must  be  obtained  before  explora- 
tions begin.  If  this  is  refused,  or  hard  terms  are  demanded, 
ample  means  are  provided  in  the  law  to  compel  him  to  be  reason- 
able, although  they  may  involve  considerable  expense.  Operat- 
ing under  a  mining  license  is  equivalent  to  a  leasehold.  The 
$10  fee  and  50-cent  acreage  tax  must  be  renewed  annually,  and 
full  reports  of  all  operations  made  to  the  Inspector  of  each 
district  on  dates  of  renewal,  for  the  year  just  ended. 

Royalty  may  be  charged,  at  the  option  of  the  Governor  in 
Council,  but  cannot  exceed  3%  on  the  net  value  of  the  output. 


176  INTERNATIONAL  MINING  LAW 

Fee  simple  title,  covering  both  surface  and  sub-soil  mining 
rights — except  in  the  case  of  claims  located  on  private  land, 
when  surface  rights  must  be  obtained  from  soil  owner — can  be 
secured  from  the  Government  on  the  following  terms: 

1.  In  the  case  of  claims  producing  gold  or  silver  either  alone 
or  in  connection  with  other  metals,  on  payment  of  $20  per  acre 
if  within  20  miles  (by  nearest  practicable  road)  of  a  railroad,  or 
$10  per  acre  if  over  20  miles. 

2.  In  the  case  of  claims  producing  neither  gold  nor  silver,  but 
yielding  any  other  metal  or  minerals,  $4  per  acre  if  within  20 
miles  of  a  railroad,  or  $2  per  acre  if  over  20  miles. 

Even  after  passing  title,  annual  labor  on  the  claim  is  required 
by  the  government,  to  the  extent  of  $500  per  100  acres  or  frac- 
tion thereof  in  the  case  of  claims  producing  gold  or  silver,  and  to 
the  extent  of  $200  per  100  acres  or  fraction  thereof  on  other  claims. 
Finally,  all  mining  claims  to  which  leasehold  or  freehold  title 
has  been  granted  are  subject  to  an  annual  tax  of  10  cents  per  acre. 

RESULTS 

The  production  of  metals  began  in  Canada  with  the  discovery 
of  gold  in  British  Columbia  in  1858.  Copper  mining  began  in 
Newfoundland  in  1872  but  did  not  become  important  until 
1879.  Silver  production — other  than  that  recovered  from  placer 
gold — dates  from  1880  so  far  as  reliable  statistics  indicate.  Nickel 
became  a  factor  of  the  output  in  1889,  lead  in  1890  and  zinc  in 
1906.  From  the  first  date  up  to  and  including  1916  the  statis- 
tics are  as  follows. 

Metal  Term  Totals  Annual  average  1916 

Gold 59  years  $385,736,840  $6,504,014  $22,800,000 

Copper 38  years  201,197,812  5,294,679  31,930,515 

Silver 37  years  190,504,015  5,148,757  16,854,635 

Nickel 28  years  161,903,419  5,782,265  29,035,497 

Lead 27  years  38,627,570  1,430,651  3,850,829 

Zinc 11  years  10,122,784  920,253  6,532,768 


$988,092,440        $25,080,619        $111,004,244 


CANADIAN  SYSTEM  OF  MINING  LAW 


177 


Hence  the  gain  in  value  at  the  end  of  the  period  in  the  case  of 
each  metal,  over  the  average  production  of  the  term,  has  been, 
for  gold  250%,  for  copper  503%,  for  silver  227%,  for  nickel 
402%,  for  lead  169%  and  for  zinc  609%.  These  are  apparently 
very  remarkable  results.  But  being  based  wholly  on  values 
instead  of  on  quantities  they  are  misleading,  and  particularly 
so  in  view  of  the  fact  that  during  the  last  three  years  of  the  term 
abnormally  high  prices  have  prevailed  for  all  metals  except 
gold,  while  at  the  same  time  the  latter  has  lost  greatly  in  pur- 
chasing power,  probably  to  the  extent  of  50%. 

To  present  the  results  in  a  more  normal  way,  and  for  compari- 
son with  similarly  worked  out  figures  for  the  other  great  mining 
fields  of  the  world,  the  following  table  has  been  prepared,  which 
terminates  with  the  statistics  of  1913,  thus  eliminating  the  effect 
of  the  high  prices  that  have  prevailed  in  the  metal  market  since 
the  opening  of  the  European  war.  This  still  makes  an  excellent 
showing  for  the  Canadian  field,  excepting  in  the  case  of  zinc, 
which  is  produced  only  in  British  Columbia. 


Canada,  1858  to  1913  (inclusive):  Alberta,  British  Columbia,  Manitoba,  New  Brunswick, 
Newfoundland,  Northwest  Terr.,  Nova  Scotia,  Ontario,  Quebec,  Saskatchewan  and 

Yukon  Terr. 


Metal 

Term 

Years 
in 
term 

Total  product 
of  term 

Average 
annual 
product  dur- 
ing term 

Product  of 
1913 

Gain  (+) 
or  loss  (  —  ) 
in  1913  as 
compared 
with 
average 

Gold  

1858  to  1913 

56 

$328,074,825 

$5,858,479 

$16,598,923 

+  183% 

Copper.  .  .  . 

1879  to  1913 

35 

140,801,097 

4,022,888 

12,676,135 

+215% 

Silver  

1880  to  1913 

34 

144,463,714 

4,248,932 

19,040,924 

+  348% 

Nickel  

1889  to  1913 

25 

115,326,547 

4,613,062 

7,076,945 

+  53% 

Lead 

1890  to  1913 

24 

31,439,727 

1,309,989 

1,642,680 

+  25% 

Zinc  

1906  to  1913 

8 

1,800,360 

225,045 

159,488 

-   29% 

$761,906,270 

$20,278,395 

$57,195,095 

+  182% 

178  INTERNATIONAL  MINING  LAW 

Considering  the  field  as  a  whole,  and  disregarding  all  statistics 
later  than  those  of  1913,  the  status  for  each  metal  may  be  briefly 
summarized  as  follows:  The  peak  of  gold  production  occurred  in 
1889  with  an  output  of  $27,957,776,  which  corresponded  with 
the  best  year  at  the  Klondyke.  Copper  production  steadily 
grew  in  value  up  to  1912  when  the  output  was  worth  $13,519,251. 
This  was  also  the  best  year  for  silver  in  the  Dominion,  when  the 
product  sold  for  $19,425,656.  The  record  year  for  nickel  was 
1910,  with  a  crop  valued  at  $11,181,310.  The  lead  maximum 
was  in  1906  when  the  output  had  a  value  of  $3,054,065;  and  for 
zinc  the  date  was  1912  when  the  metal  recovered  sold  for  $679,- 
462.  None  of  these  maxima  were  equalled  up  to  the  close  of 
1913. 


CHAPTER  X 

THE  SOUTH  AFRICAN  SYSTEM  OF  MINING  LAW.     DIGEST  OF 

THE  MINING  LAWS  OF  THE  CAPE  PROVINCE,  NATAL, 

ORANGIA,    RHODESIA,   AND   THE   TRANSVAAL. 

RESULTS  OF  THE  SYSTEM.    STATISTICS 

OF  PRODUCTION  FROM  1879  TO  1916 

THE  SOUTH  AFRICAN  SYSTEM 

These  laws,  embracing  the  codes  of  Rhodesia,  the  Transvaal, 
Orangia,  Natal,  and  the  Cape  Province,  present  very  strong 
family  resemblances,  and  are  markedly  different  from  those  of 
any  other  mining  region.  This  had  resulted  first  from  the 
sociological  conditions  that  have  existed  during  the  settlement 
of  the  country,  second  because  of  the  unusual  forms  in  which  its 
mineral  wealth  came  under  the  notice  of  the  white  man,  and 
third,  from  the  rapidity  with  which,  in  the  last  forty  years,  the 
culture  of  its  inhabitants  has  changed  from  semi-civilization — 
and  even  barbarism — to  modernity.  It  will  be  interesting  as  well 
as  helpful  to  an  understanding  of  the  peculiarities  of  its  mineral 
laws  to  give  certain  details  of  the  land  and  its  inhabitants. 

About  92%  of  its  population  (which  in  1910  was  estimated  at 
8,400,000)  are  native  blacks  or  colored  people,  including  a 
small  number  of  Asiatics,  mainly  Hindus.  The  former  are  the 
laborers.  It  is  against  the  law  to  train  them  to  perform  any 
kind  of  work  requiring  discretion  or  initiative,  although  in  the 
older  parts  of  Natal  and  the  Cape  Province  the  infraction  of  this 
regulation  is  winked  at  by  the  authorities,  and  a  very  consider- 
able number  of  the  pure  natives  have,  by  ability  and  faithfulness, 
won  the  confidence  of  employers  and  occupy  positions  of  trust 
requiring  knowledge  and  education.  But  they  have  no  standing 

179 


180  INTERNATIONAL  MINING  LAW 

as  citizens.  They  are  allowed  to  do  any  work  requiring  physical 
strength  or  manual  dexterity  but  debarred  from  all  other  lines 
of  activity.  In  the  mining  industry,  for  instance,  they  may  learn 
to  use  the  hammer  and  drill,  and  become  very  expert  at  the  work, 
but  may  not  point,  load  or  fire  holes  or  operate  a  machine  drill; 
they  may  fire  the  boilers  of  a  power  plant  but  may  not  handle  the 
engine.  Throughout  the  whole  sub-continent  the  white  man 
directs,  supervises  and  operates  machinery,  and  is  absolutely 
debarred  from  common  labor.  If  he  trespasses  this  unwritten 
law  he  loses  caste  at  once.  This  absolute  color  line  has  had  its 
natural  effect  upon  the  mining  industry,  for  it  has  made  the 
business  of  prospecting  impossible.  There  is  not  one  of  these 
pioneer  mineral  explorers  in  the  countries  under  consideration. 
Consequently  the  discovery  of  new  mines  is  a  rare  incident,  and 
always  purely  a  matter  of  accident. 

In  its  upland  and  mountainous  parts  where  the  mines  are  to  be 
found,  it  is  a  semi-arid  and — during  the  rainy  season — an  un- 
healthy land,  afflicted  with  malaria  in  the  valleys,  sparsely  tim- 
bered, provided  with  no  navigable  rivers,  but  crossed  with  innumer- 
able water  courses  which  are  raging  floods  during  a  part  of  the 
year,  and  often  little  more  than  series  of  stagnant  pools  during  the 
remainder.  Such  a  country  affords  meagre  camping  facilities  and 
does  not  invite  the  wandering  explorer.  But  during  the  four  or 
five  months  of  the  winter  few  regions  possess  a  climate  more 
attractive.  There  is  a  monotony  in  the  scenery  which  at  first 
is  depressing  but  later  becomes  restful  and  conducive  to  modera- 
tion in  activity.  It  is  an  ancient  land,  which  has  been  inhabited 
for  many  centuries  by  uncivilized  native  races  who  have  left 
behind  them  traces  of  the  rude  stage  of  culture  to  which  they 
attained  in  the  way  of  crude  rock  paintings,  roughly  built  stone 
structures,  and,  in  certain  parts,  a  vast  number  of  shallow  exca- 
vations along  the  lines  of  outcrop  of  gold  bearing  veins.  The  date 
of  these  prehistoric  labors  has  not  been  satisfactorily  determined 
and  perhaps  never  may  be  as  there  is  a  total  absence  of  all 
inscriptions  upon  even  the  most  pretentious  of  the  ruins.  But 
it  is  fairly  well  agreed  among  archaeologists  that  at  some  period 


SOUTH  AFRICAN  SYSTEM  OF  MINING  LAW  181 

of  the  past  there  was  considerable  commerce  with  Arabia  and 
Egypt,  and  possibly  with  India,  and  much  mingling  of  the  natives 
with  these  foreigners.  Certain  parts  of  the  interior  uplands  were 
certainly  through  many  centuries  the  site  of  an  extensive  gold 
mining  industry,  the  metal  having  been  recovered  from  the  out- 
crops of  veins  by  the  labor  of  slaves  operating  under  the  direction 
of  the  white  immigrants.  Much  of  the  country  during  this  era 
was  prospected  for  gold  and  some  parts  of  it,  notably  Southern 
Rhodesia,  so  thoroughly  that  but  very  few  new  deposits  of  that 
metal  have  since  been  found.  There  has  also  occurred  a  pre- 
historic search  for  copper,  but  no  evidence  has  been  found  of 
ancient  silver  mines. 

Modern  mining  began  with  the  accidental  discovery  of  the 
outcropping  gold-bearing  banket  beds  of  the  Transvaal  upland  in 
1887,  which  had  been  overlooked  by  the  natives.  In  1892 
the  Rhodesian  mining  districts  became  accessible.  This  proved 
to  be  a  land  already  prospected.  All  that  it  was  necessary  for 
the  pioneers  to  do  was  to  give  a  suitable  present  to  a  native  chief, 
who  would  then  immediately  order  a  runner  or  guide  to  take  the 
white  man  to  the  nearest  old  workings  not  already  given  away. 

The  kind  of  law  that  has  been  evolved  from  these  peculiar  and 
unusual  conditions  is  very  interesting  and  quite  unique.  Pros- 
pecting is  not  considered  to  be  an  occupation  involving  the 
search  for  undiscovered  mineral  deposits,  but  a  business  hav- 
ing for  its  object  the  relocation  of  already  known  outcrops 
and  their  preliminary  development  by  means  of  comparatively 
shallow  excavations  to  determine  whether  or  not  the  lode  is  wide 
and  rich  enough  to  become  payable.  Hence  it  becomes  simply 
claim  staking,  and  for  the  exercise  of  the  act  the  laws  require 
the  taking  out  of  a  license.  These  are  available  only  to  whites, 
vary  in  cost  from  one  shilling  in  Natal  to  ten  shillings  in  Orangia, 
and  are  good  for  one  month  only,  except  in  Rhodesia,  where  the 
cost  is  twenty  shillings  and  the  term  a  year.  In  Natal,  Rhodesia, 
and  Cape  Province  these  documents  are  renewable  indefinitely 
at  the  same  cost  per  term,  and  in  Orangia  at  half  the  cost.  But 
in  the  Transvaal  only  two  renewals  are  permitted.  Any  desired 


182  INTERNATIONAL  MINING  LAW 

number  of  licenses  may  be  taken  out  by  an  individual.  The 
size  of  the  location  varies  from  fifteen  acres  in  the  Transvaal  to 
150  acres  in  the  Cape,  being  determined  in  each  case  by  the  size 
of  the  unit  claim  multiplied  by  the  number  of  them  allowed  to  a 
legal  location.  None  carry  extralateral  rights  except  in  Rhodesia, 
where  the  claimant  is  permitted  the  indefinite  pursuit  of  the  one 
vein  upon  which  the  location  was  made.  Everywhere  in  this 
group  of  laws  a  discovery  is  a  necessary  prerequisite  to  a  location. 

Exclusive  prospecting  areas,  ranging  in  size  from  15  to  140 
acres,  and  good  for  terms  of  30  days  and  upwards  for  preliminary 
exploration  purposes,  may  be  secured  in  all  the  provinces  except 
Natal  upon  reasonable  conditions  and  at  moderate  expense. 
The  document  conveying  such  franchises  is  usually  called  a 
" prospecting  permit." 

Neither  permits  nor  licenses  carry  anything  more  than  pros- 
pecting privileges,  and  the  right  to  make  a  permanent  location 
within  proscribed  lines  and  to  carry  on  development  work. 
But  when  the  location  is  staked,  surveyed,  monumented  and 
registered,  and  the  holder  desires  to  produce  ore  and  realize  upon 
it,  he  must  first  take  out  what  is  called  a  claim  or  working  license, 
which  is  of  the  nature  of  a  monthly  tax  ranging  from  two  shillings 
to  two  pounds  per  month  on  each  unit  claim  in  the  location  from 
which  ore  is  being  taken,  according  to  which  province  he  is 
operating  in,  and  whether  his  claim  belongs  to  the  alluvial,  the 
precious  metal,  or  the  base  metal  class. 

There  are  no  labor  requirements  in  Orangia,  the  Cape  Province , 
or  Natal.  In  the  Transvaal  the  mining  Commissioner  must  be 
satisfied  that  reasonably  energetic  development  operations  are  in 
progress  or  claim  licenses  may  be  imposed,  whether  the  property 
is  producing  or  not.  In  Rhodesia  the  alternatives  are  claim 
licenses,  or  sixty  feet  of  development  per  annum  per  location 
(not  per  unit  claim),  or  the  equivalent  of  the  latter  in  cash. 
Royalties  are  demanded  on  the  precious  metals  only  in  Rhodesia, 
and  on  the  base  metals  only  in  Rhodesia,  Orangia,  and  the 
Transvaal,  the  rates  ranging  from  1%  to  as  high  as  7%%. 

Location  and  registration  acts  and  requirements  are  rather 


SOUTH  AFRICAN  SYSTEM  OF  MINING  LAW  183 

elaborate,  and  in  Rhodesia  and  the  Transvaal  somewhat  com- 
plicated and  expensive.  No  titles  are  given  beyond  the  monthly 
leasehold,  which  is  maintained  in  force  by  the  monthly  renewal 
of  the  Permit  or  License  under  which  it  was  initiated,  or  of  the 
claim  license  permitting  commercial  operation,  or  both,  plus  in 
Rhodesia  and  the  Transvaal  the  annual  labor  requirements  or 
inspection  fee  on  idle  claims. 

General  mining  conditions  in  South  Africa  may  be  summarized 
as  follows :  In  the  Cape  Province,  Natal,  and  Orangia  the  metallic 
output  has  never  been  important  and  gives  little  promise  for  the 
future.  Nearly  all  the  public  domain  has  been  alienated  for 
agricultural  or  pastoral  purposes  and  the  inducements  to  search  for 
mineral  on  privately  owned  tracts  are  slight.  In  the  Transvaal 
the  enormous  gold  production  of  the  past  forty  years  is  thought  to 
have  reached  its  maximum.  It  will  doubtless  continue  at  high 
figures  for  some  time  yet,  because  promising  extensions  of  the 
main  reef  have  been  proven  up  and  determined  to  be  moderately 
payable.  But  no  prospectors  are  in  the  field,  and  few  new  occur- 
rences of  either  the  precious  or  base  metals  are  being  found.  In 
Rhodesia  the  output  is  steadily  advancing  and  has  been  ever 
since  1905,  when  the  mining  law  was  modified  so  as  to  permit 
individual  as  well  as  company  operations.  Prospectors  for  gold 
are  a  superfluity  in  that  country,  for  all  the  lodes  carrying  the 
precious  metal  have  been  located  for  centuries.  But  it  is  cer- 
tain that  Rhodesia  has  great  undiscovered  wealth  in  other  metals, 
notably  those  of  the  rarer  class  like  platinum,  chromium,  tung- 
sten, tin,  etc.,  which  are  usually  encountered  in  the  primitive 
rocks  so  abundant  there;  and  if  the  laws  and  customs  could  be 
modified  so  as  to  attract  the  real  mineral  pioneer  great  material 
benefits  would  surely  result.  The  southern  end  of  the  African 
continent  was  at  one  time  a  peninsula  projecting  from  the  Ant- 
arctic land  mass,  and  later  an  island  like  Australia.  Much  of  it 
has  never  been  submerged  since  early  geological  time,  and  while 
erosion  through  countless  centuries  must  have  carried  away  vast 
amounts  of  the  metals  that  arose  from  below  into  its  primitive 
rocky  floor,  there  are  indications  that  much  still  remains. 

13 


184  INTERNATIONAL  MINING  LAW 

CAPE  COLONY 

(Law  of  December  23rd,  1898,  with  amendments  to  date  of  January  1st,  1917) 

The  State  claims  the  exclusive  ownership  of  the  precious  metals 
and  precious  stones  within  its  boundaries,  whether  on  the  public 
domain  or  on  privately  owned  land;  and  the  exclusive  ownership 
of  all  other  metals  and  minerals  on  the  public  domain,  and  also 
on  privately  owned  land  except  where  the  deed  of  grant  of  the 
same  expressly  passed  mineral  or  underground  rights.  It  will 
not  sell  its  mineral  deposits.  But  it  allows  search  for  them,  will 
grant  prospecting  areas,  and  permit  the  location  of  claims,  which 
can  be  converted  into  mining  leases,  if  desired. 

Prospecting  is  not  free.  A  license  is  required.  The  document 
costs  2s.  6d.,  is  good  for  30  days  only,  but  is  renewable  monthly 
thereafter  at  the  same  price  for  a  total  period  of  12  months.  It 
carries  the  right  to  search  for  all  the  metals  and  minerals  on  the 
public  domain,  and  also  on  privately  owned  property  (the  consent 
of  the  owner  having  first  been  secured)  where  mineral  rights  have 
not  been  reserved;  otherwise,  without  his  consent,  excepting  on 
areas  covered  by  buildings,  or  enclosed  and  cultivated,  or  devoted 
to  the  public  use  as  parks,  cemeteries,  townsites  and  other  public 
utilities.  The  details  of  the  law  may  conveniently  be  considered 
under  three  headings,  namely,  Precious  Metals,  Precious  Stones, 
and  Base  Metals  and  Minerals. 

PRECIOUS  METALS 

A  licensed  prospector  may  stake  off  a  rectangular  area  7500  by 
800  feet,  and  hold  exclusive  exploration  rights  therein  so  long  as 
desired  during  the  life  of  his  license  or  any  extension  thereof, 
provided  operations  are  carried  on  with  reasonable  diligence  and 
intelligence.  The  prospector  is  required  to  report  promptly 
(verbally)  all  mineral  discoveries  made,  whether  in  workable 
quantity  or  not,  and  when  ore  is  found  in  payable  amount  to 
make  a  sworn  statement  to  that  effect  before  the  nearest  Civil 
Commissioner.  Any  such  discoverer  who  desires  the  exclusive 
possession  and  full  working  rights  for  his  "find,"  and  who  can 


SOUTH  AFRICAN  SYSTEM  OF  MINING  LAW  185 

prove  to  the  Commissioner  that  it  is  of  value,  or  capable  of  being 
developed  to  such  a  status,  is  entitled  to  stake  out  within  his 
prospecting  area  25  unit  claims  in  a  block,  if  on  private  property, 
and  50  of  such  claims  if  operating  on  the  public  domain,  said 
staking  to  be  done  immediately  after  the  proclamation  of  the 
region  as  a  " Public  Digging"  before  any  other  claims  are  allowed 
to  be  staked.  Such  a  location,  being  the  first  made  in  a  new 
region,  may  be  held  and  operated  thereafter  by  the  claimant, 
free  of  claim  license  tax.  All  subsequent  locators  have  to  pay 
this  tax. 

The  unit  mining  claim  measures  150  feet  along  the  strike  or 
outcrop  of  the  vein,  is  rectangular  in  shape,  and  800  feet  in  width, 
with  the  right  to  lay  off  any  part  or  all  of  that  width  as  the 
locator  may  see  fit,  so  long  as  the  outcrop  is  included.  There 
are  no  extralateral  rights.  No  other  discoverer's  claim  is 
allowed  within  a  distance  of  six  miles  on  the  same  lode  or  vein. 
After  the  discoverer's  claims  are  staked,  other  prospectors  who 
may  have  been  working  within  the  limits  of  the  proclaimed  area 
may  locate  ground  on  the  same  vein,  but  only  to  the  amount  in 
each  case  of  two  unit  claims,  and  as  soon  as  ore  extraction  begins 
must  pay  claim  license  money  monthly  in  advance. 

If  the  discovery  is  made  on  private  land,  and  the  Governor  for 
any  reason  should  refuse  to  proclaim  the  region  as  a  Public  Dig- 
ging, the  discoverer  may  still  stake  off  the  25  unit  claims  allowed, 
provided  he  can  make  a  satisfactory  agreement  with  the  surface 
owner. 

In  the  case  of  a  discovery  made  upon  Crown  land,  and  the 
refusal  of  the  Governor  to  proclaim  a  Public  Digging,  the  dis- 
coverer may  demand  a  lease,  the  area  of  which  shall  be  decided 
by  the  Governor,  but  may  not  exceed  100  morgen  (about  210 
acres).  The  term  is  five  years,  with  the  right  of  indefinite 
renewals  of  the  same  period,  and  the  rental  ten  shillings  per 
morgen  (2.1  acres)  per  annum,  payable  in  advance. 

Claims  other  than  those  of  the  discoverer,  desired  by  prospec- 
tors who  may  have  been  searching  on  the  proclaimed  area  at  the 
time  of  the  discovery,  may  not  be  staked  until  the  date  arrives 


186  INTERNATIONAL  MINING  LAW 

for  the  proclamation  to  become  effective  for  the  general  public. 
Then,  any  male  of  legal  age  and  status  may  stake  off  up  to  five 
unit  claims  in  a  block.  Within  six  days  these  must  be  registered. 
No  staking  is  allowed  on  Sundays  or  on  legal  holidays,  or  between 
sunset  and  sunrise.  The  staking  requirements  are  simple  and 
inexpensive.  The  government  reserves  the  right  to  demand  sur- 
veys on  all  claims,  at  the  expense  of  the  claimant.  Surveying 
fees  are  moderate. 

The  registration  of  a  claim  costs  20  shillings,  and  is  good 
for  a  month  only.  Thereafter  re-registration  must  be  effected  at 
each  recurring  monthly  date,  on  each  unit  claim,  and  the  20- 
shilling  fee  paid.  After  the  first  registration  conveyancing  rights 
are  complete. 

When  claims  are  unworked  for  a  period  of  four  months  the 
District  Inspector  has  the  right  to  double  the  monthly  license 
fee,  and  after  eight  months  of  idleness  it  may  be  quadrupled. 
But  upon  a  showing  satisfactory  to  the  Inspector  (sickness,  for 
instance),  a  four  month's  certificate  of  protection  may  be 
obtained. 

A  discoverer  of  a  new  alluvial  field  has  the  right,  after  he  has 
proven  to  the  satisfaction  of  the  Civil  Commissioner  that  the 
field  is  a  payable  one,  and  upon  its  proclamation  by  the  Governor 
as  a  public  Digging,  before  any  other  claims  are  staked,  to  take 
up  20  claims  in  a  block,  and  to  hold  and  work  the  same  free  of 
license  money,  so  long  as  all  other  provisions  of  the  law  are 
complied  with. 

The  alluvial  claim  is  a  rectangular  area  measuring  150  by  150 
feet.  But  upon  its  being  shown  that  a  claim  so  laid  out  works  a 
hardship,  one  of  irregular  shape  may  be  allowed  by  the  authorities, 
but  the  area  taken  must  not  exceed  20,000  square  feet. 

The  license  fee  on  all  classes  of  claims  is  2s.  6d.  per  month  per 
claim,  except  when  on  private  property,  when  it  is  five  shillings, 
one-half  of  which  goes  to  the  surface  owner. 

When  a  lode  is  discovered  on  an  alluvial  claim  the  claim  holder . 
can  have  his  claim  converted  into  a  reef  claim  if  he  so  desires,  and 
must  do  so  if  he  intends  to  mine  upon  the  lode. 


SOUTH  AFRICAN  SYSTEM  OF  MINING  LAW  187 

All  alluvial  claims  must  be  re-registered  monthly  at  a  cost  of 
two  shillings  and  sixpence  per  claim.  Alluvial  claims  remaining 
unworked  for  14  consecutive  days,  excluding  Sundays  and  legal 
holidays  from  the  count,  may  be  declared  abandoned  by  the 
authorities. 

All  gold  recovered  from  the  operations  of  reef  or  alluvial  claims 
must  be  registered  not  later  than  the  second  day  of  the  month 
following  its  recovery,  at  the  office  of  the  Inspector  of  the  district. 

PRECIOUS  STONES 

The  prospecting  area  for  precious  stones  is  a  circle  with  a  diam- 
eter of  1000  yards,  in  the  center  of  which  a  stake  must  be  planted 
inscribed  with  the  name  of  the  claimant  and  the  number  of  his 
license.  Such  a  claim  may  be  located  only  on  Crown  land.  Dur- 
ing the  prospecting  period  this  stake  may  be  moved  at  the  will 
of  the  prospector,  so  long  as  his  circle  does  not  encroach  on  the 
area  of  some  other  prospector.  To  place  such  a  claim  upon 
privately  owned  land  the  consent  of  the  surface  owner  must  first 
be  obtained.  In  both  cases  a  notice  of  the  discovery  must  be 
given  to  the  Civil  Commissioner  within  a  month,  and  monthly 
thereafter  a  report  of  the  amount  of  ground  washed  and  the  yield 
of  the  same  must  be  made  to  the  authorities.  The  first  discoverer 
of  a  payable  precious  stone  deposit  in  rock  (a  pipe)  is  entitled  to 
locate  50  claims,  and  in  the  case  of  an  alluvial  deposit  twenty  claims, 
and  hold  and  work  the  same  free  of  license  money  so  long  as  he  re- 
tains the  ownership  and  conducts  his  operations  in  accordance  with 
the  general  provisions  of  the  law.  Upon  notice  to  the  authorities 
of  the  discovery,  and  satisfactory  proof  that  it  is  of  importance, 
the  area  is  surveyed  by  the  government,  and,  excluding  the 
discoverer's  block,  is  marked  off  into  claims  30  feet  square  and 
proclaimed  as  a  Public  Digging.  Thereupon,  on  the  day  named 
for  the  proclamation  to  go  into  effect,  the  claims  in  the  marked - 
off  area  are  sold  at  public  auction,  either  singly  or  in  blocks  of 
not  over  20.  The  purchasers  of  these  must  register  them  at 
once  at  a  cost  of  20  shillings  per  claim,  and  re-registration  at  the 


188  INTERNATIONAL  MINING  LAW 

same  charge  must  be  effected  monthly  thereafter  to  maintain 
possession  and  working  privileges.  Also  a  monthly  claim  license 
is  required,  payable  in  advance.  The  amount  of  this  is  10  shil- 
lings per  month  when  the  deposit  is  an  alluvial  one,  and  20  shillings 
when  it  is  in  rock.  With  each  claim  an  area  of  an  acre  in  extent 
is  granted  for  operating  purposes,  situated  outside  of  the  pro- 
claimed tract.  No  person  is  allowed  to  register  a  precious  stone 
claim  unless  he  can  prove  his  standing  as  a  reputable  citizen  of 
the  community.  A  royalty  of  1%  of  the  value  of  the  stones 
recovered  is  also  payable  upon  declaration,  which  must  be  made 
as  in  the  case  of  gold. 

Dredging  areas  for  gems  on  Crown  land  may  be  obtained. 
These  take  the  form  of  leases.  A  prospecting  license  is  first 
required,  which  costs  £15  sterling.  This  confers  the  right  to 
stake  off  an  area  on  a  public  river  not  to  exceed  four  miles  of  its 
length,  or  if  upon  a  lake,  lagoon  or  marsh,  of  not  more  than  200 
acres.  Immediate  registration  is  required,  which  is  good  for 
one  year.  After  that  period,  if  the  ground  is  retained,  it  must  be 
converted  into  a  Lease.  The  area  allowable  is  two  miles  of  a 
river  channel  or  100  acres  of  lake,  lagoon,  or  marsh.  The  term  is 
three  years,  renewable  up  to  a  total  period  of  21  years.  The 
rental  is  sixpence  per  acre  per  month,  in  advance,  plus  a  royalty 
of  1  %  on  the  gross  value  of  the  stones  recovered,  which  must  be 
declared  monthly. 

BASE  METALS  AND  MINERALS 

A  special  prospecting  license  is  required  for  searching  for  this 
kind  of  mining  property.  It  costs  one  shilling,  is  good  for  a 
month,  and  may  be  renewed  at  the  same  cost  for  a  total  period  of 
12  months.  Under  it  on  free  public  land,  a  prospecting  area  of 
1000  acres  may  be  staked  off,  or  a  circular  area  with  a  diameter 
of  2482  yards  with  beacon  stake  at  center,  upon  which  the 
locator  has  exclusive  prospecting  rights  during  the  life  of  his 
license.  But  he  is  under  the  obligation  to  conduct  his  operations 
on  this  tract  with  diligence,  and  to  the  satisfaction  of  the  Minister 
of  Mines. 


SOUTH  AFRICAN  SYSTEM  OF  MINING  LAW  189 

Upon  the  discovery  of  payable  ore  on  such  a  tract  the  discoverer 
is  entitled  to  stake  off  a  claim  of  not  more  than  1000  acres  in 
extent,  which  must  be  surveyed  at  his  cost,  and  upon  which  he 
will  be  given  a  lease.  This  lease  covers  the  right  to  produce  base 
metals  and  minerals  only,  and  does  not  allow  the  production  of 
the  precious  metals  without  a  further  license.  Its  term  is  one 
year,  with  the  right  of  renewals  up  to  a  total  period  of  99  years. 
During  the  first  year  there  is  no  rental.  After  that  the  rental 
is  one  shilling  per  acre  per  annum,  or  less,  at  the  discretion  of  the 
Minister  of  Mines.  This  official  may  also  impose  a  royalty 
charge.  During  the  term  of  the  lease,  such  grants  must  be 
operated  to  the  satisfaction  of  the  district  Inspector  of  Mines, 
in  accordance  with  the  regulations  of  the  law.  They  may  be 
assigned  or  sublet  with  the  consent  of  the  Governor.  During 
the  first  two  weeks  in  each  year  (after  the  first)  in  the  life  of 
such  a  lease,  sworn  reports  must  be  made  upon  the  operations  of 
the  year  passed,  with  complete  statistical  details  of  production, 
etc. 

NATAL 
(Law  of  November  14th,  1900,  amended  to  date  of  January  1st,  1917) 

The  right  of  mining  for  and  disposing  of  all  minerals  on  or  in 
land  situated  in  the  Province  is  declared  to  be  exclusively  vested 
in  the  government  of  the  same,  and  covers  all  mineral  substances, 
whether  found  on  the  unoccupied  Public  Domain,  or  in  privately 
owned  land;  excepting  however  where,  previously  to  the  passage 
of  this  law,  the  mineral  rights  have  been  sold,  or  alienated  in 
perpetuity. 

The  law  recognizes  three  general  classes  of  mining  claims  or 
properties,  to  wit: 

Alluvial  Claims,  which  are  granted  for  the  mining  of  precious 
stones  and  any  and  all  desirable  minerals  or  metals  that  occur 
disseminated  through  the  surface  soil.  Their  size  is  100  feet 
square. 

Mining  Claims,  which  are  granted  for  the  purpose  of  pros- 
pecting and  mining  for  the  metals,  and  other  minerals  found  in 


190  INTERNATIONAL  MINING  LAW 

rock  in  place  (excluding  coal),  beneath  the  surface.  Their 
maximum  size  is  300  yards  square. 

Mineral  Claims,  which  are  granted  for  the  purpose  of  pros- 
pecting or  mining  for  coal,  oil,  gas,  building  stone,  iron  stone  and 
such  substance. 

Each  one  of  these  may  be  applied  for  either  as  a  prospecting 
or  a  mining  claim,  or  the  first  may  at  any  time  be  converted  into 
the  second. 

Prospecting  is  nominally  free  to  all  persons  of  either  sex,  if 
over  the  age  of  16,  and  of  European  birth  or  descent,  and  such 
individuals  may  stake  out  for  surface  inspection  up  to  four  of 
either  of  the  three  classes  of  claims,  on  either  public  or  private 
land;  but  no  excavation  of  any  kind  must  be  made  without  first 
procuring  a  prospecting  or  mining  license,  and  application  for 
the  same  must  be  made  within  14  days  of  the  act  of  staking. 

Prospecting  licenses  cost  one  shilling,  are  good  for  three  months, 
are  renewable  indefinitely  at  the  same  cost,  and  permit  the 
location  of  one  claim  only.  If  it  is  desired  to  locate  more  than 
one  claim,  additional  licenses  must  be  taken  out.  No  more 
than  four  such  licenses  will  be  issued  to  an  individual  at  any  one 
time,  but  such  licenses  are  transferable,  and  as  many  as  desired 
may  be  purchased  from  others  who  are  willing  to  sell  them. 

Prospecting  claims  must  be  registered  within  14  days  of  the 
date  of  staking.  The  registration  fee  is  five  shillings.  A  claim  so 
staked  and  registered  gives  the  holder  the  exclusive  right  to 
prospect  within  its  bounds,  but  not  to  sell  ore  found,  nor  in  any 
way  to  realize  value  therefrom. 

Prospecting  licenses  may  be  paid  for  in  advance  for  four 
terms  (of  3  months  each),  if  desired,  but  for  no  longer  period. 

Contiguous  prospecting  claims  owned  by  one  or  more  indi- 
viduals may  be  consolidated  into  " blocks"  of  not  more  than  12 
claims  each,  with  not  more  than  four  in  one  line.  Such  consoli- 
dation must  be  registered,  the  fee  for  which  is  five  shillings  per 
claim  per  three  months. 

Prospecting  claims,  from  and  after  one  month  from  date  of 
registration,  must  be  worked  continuously,  except  on  Sundays 


SOUTH  AFRICAN  SYSTEM  OF  MINING  LAW  191 

and  public  holidays,  under  the  supervision  of  one  white  individual 
of  European  birth  or  descent  over  the  age  of  sixteen,  who  also 
must  reside  on  the  claim  or  in  its  immediate  vicinity.  The 
Deputy  Commissioner  of  Mines  must  be  kept  advised  of  the 
name  of  such  person  working  or  supervising  work,  and  no  indi- 
vidual can  be  so  in  charge  of  more  than  one  claim,  or  more 
than  one  consolidated  block  of  claims.  Under  certain  conditions, 
and  at  the  discretion  of  the  Commissioner  of  Mines,  exemption 
from  these  labor  conditions  can  be  arranged  at  a  cost  of  £1  per 
claim  per  three-month  term. 

Prospecting  upon  unused  or  unoccupied  private  land  may  be 
done  without  the  consent  of  the  owner,  and  prospecting  claims 
may  be  located,  but  only  to  the  extent  of  four  claims  to  any 
individual  (except  the  surface  owner),  and  only  two  claims  can 
be  located  on  any  one  line.  After  the  issue  of  four  prospecting 
licenses  to  prospect  on  any  given  tract  of  private  land,  whether 
said  four  are  issued  to  one  or  to  more  individuals,  no  others 
may  be  issued  against  the  land  of  that  owner  for  three  months. 

Surface  owners  may  explore  and  excavate  on  their  own  land 
without  taking  out  a  prospecting  license,  but  may  not  stake  off 
a  claim  without  first  taking  out  a  mining  license.  On  the  other 
hand,  there  is  no  limit  to  the  number  of  mining  claims  a  surface 
owner  may  stake  off  on  his  own  ground. 

When  it  is  desired  to  locate  prospecting  claims  on  privately 
owned  land,  in  addition  to  the  regular  fee  for  such  license  the 
applicant  must  deposit  with  the  Commissioner  of  Mines  the 
sum  of  £2  10s.,  for  each  and  every  claim  he  desires  to  locate, 
such  money  to  be  held  by  the  Commissioner  to  compensate 
the  surface  owner  for  any  damage  that  may  result  from  the 
exploration.  This  deposit  is  returnable  if  no  injury  is  inflicted. 

Unless  the  surface  owner  consents,  the  prospector  on  private 
land  may  have  only  two  working  assistants  while  exploring  on 
his  claim  prior  to  its  registration,  or  its  conversion  into  a  mining 
claim. 

When  a  prospecting  claim  is  abandoned,  all  excavations  made 
upon  it  must  be  filled  up. 


192  INTERNATIONAL  MINING  LAW 

The  mining  Commissioner  has  the  right,  at  any  time,  to 
demand  the  conversion  of  a  prospecting  claim  into  a  mining 
claim,  if,  in  his  opinion,  the  public  interests  require  it.  If  this 
demand  is  not  complied  with,  and  good  cause  is  not  shown  for 
the  failure  to  do  so,  the  claim,  at  his  discretion,  may  be  declared 
forfeited. 

All  claims  of  all  kinds,  must  be  rectangular  in  shape. 

Stakes  may  be  of  iron  of  one  inch  diameter,  or  of  wood  three 
inches  through,  and  must  stand  three  feet  above  the  surface. 
At  the  top  of  each  a  plate  of  wood  or  iron  not  less  than  six  inches 
square,  must  be  attached  and  maintained,  and  on  it  must  be 
written  or  painted  the  name  or  names  of  the  owners,  the  date  of 
staking,  and,  after  registration,  the  registered  number  of  the  claim. 
Also,  after  survey,  and  within  one  month  after  registration  of  the 
same,  these  must  be  replaced  by  solid  masonry  monuments  not 
less  than  two  feet  high.  Trenches  four  feet  long  and  six  inches 
deep  must  be  dug  from  each  corner  stake  towards  the  next  two 
corners. 

MINING  CLAIMS 

Not  more  than  four  alluvial  or  metal-mining  claim  licenses  may 
be  taken  out  by  anyone  entitled  to  take  out  a  prospecting  license. 
The  cost  is  two  pounds  per  month  for  the  alluvial  and  mineral, 
and  one  pound  per  month  for  the  metal  claim,  payable  in  advance 
and  renewable  indefinitely  so  long  as  the  other  provisions  of  the 
law  relating  to  them  are  complied  with.  Each  license  is  good 
for  the  location  of  one  claim  of  the  class  specified,  and  prospecting 
licenses  may  at  all  times  be  converted  into  mining  claims  on  the 
same  terms. 

Prospecting  and  mining  licenses  are  saleable  and  transferable, 
so  that  any  individual  legally  entitled  to  hold  such  documents 
may  become  the  owner  of  as  many  as  he  can  purchase  from  other 
individuals,  in  addition  to  those  he  can  take  out  himself. 

All  claims  located  under  such  licenses  must  be  promptly  regis- 
tered, surveyed  and  monumented  at  the  cost  of  the  claimant. 
Registration  fees  are  ten  shillings.  Surveying  fees  are  as  follows : 


SOUTH  AFRICAN  SYSTEM  OF  MINING  LAW  193 

For  a  single  alluvial  claim £5-  0-0 

For  each  additional  contiguous  claim 1-  0-0 

For  a  single  metal  claim 6—  0-0 

For  each  additional  contiguous  metal  claim 1-  5-0 

For  a  single  mineral  claim 8-  0-0 

For  each  additional  contiguous  mineral  claim 1-10-0 

Mining  claim  owners  in  good  standing  have  the  right  to  dispose 
of  any  ores  or  metals  taken  from  their  claims,  or  to  reduce  them 
in  mills  or  smelters  to  marketable  products,  but  before  so  doing 
a  sworn  statement  must  be  made  to  the  Deputy  Commissioner 
of  Mines  as  to  the  nature  of  the  ore  found  and  to  be  disposed  of, 
and  a  sample  of  it  exhibited. 

GENERAL  PROVISIONS 

Raw  ,gold  or  gold  dust  cannot  be  used  as  money  to  pay  for 
anything,  but  must  be  sold  to  the  licensed  buyers  of  the  com- 
modity, who  are  authorized  to  purchase  at  stated  prices. 

Surface  owners,  working  mines  on  their  own  ground,  are  re- 
quired to  pay  only  half  the  fees  that  are  due  from  others. 

There  are  no  royalties  on  metals,  minerals,  or  precious  stones 
produced. 

Default  for  one  calendar  month  in  the  payment  of  fees,  dues, 
fines  or  any  other  taxes,  entitles  the  authorities  to  make  a 
written  demand  for  the  same,  and  impose  a  fine  up  to  two  shillings 
per  diem  and  costs  for  such  part  of  another  calendar  month  as 
may  elapse  without  settlement.  At  the  end  of  the  second  month 
the  claim  may  be  sold  at  auction.  The  government  automatic- 
ally has  a  preferred  lien  over  all  creditors,  whether  the  latter  are 
secured  or  not. 

Conveyancing  rights  are  complete  for  all  registered  claims  if  the 
instrument  of  conveyance  is  recorded.  Transfer  fee  is  £1  per 
claim,  plus  2s.  6d.  recording  fee. 

ORANGIA 

(Law  of  June  17th,  1904,  with  amendments  to  date  of  January  1st,  1917) 

The  right  to  prospect  and  mine  for  any  mineral  substance  in  the 
Province,  or  to  hold  mining  property,  is  granted  only  to  white 


194  INTERNATIONAL  MINING  LAW 

persons.     Aboriginal  native  Africans,  Asiatics,  or  Polynesians, 
Colored  Americans,  Arabs,  and  Chinamen  are  debarred. 

PRECIOUS  METALS  AND  PRECIOUS  STONES 

The  law  recognizes  the  paramount  right  of  landowners,  whose 
deeds  do  not  expressly  reserve  to  the  Province  the  ownership  of 
precious  metals  and  gem  stones,  to  all  underground  rights  within 
their  lines.  They  cannot  be  forced — except  through  expropria- 
tion proceedings — to  allow  prospecting  or  mining  upon  their 
property.  Nor  do  they  require  a  license  to  warrant  them  in 
conducting  explorations  upon  it  themselves,  or  for  others  to 
whom  they  may  give  permission.  But,  before  doing  either  of 
these  things,  the  local  magistrate  must  be  informed  of  the  inten- 
tion, whereupon  the  government  automatically  acquires  the 
right,  at  any  time,  after  three  days'  notice  to  the  owner,  to  pro- 
claim the  area  a  " Public  Digging." 

On  all  other  lands  within  the  Province,  including  alienated 
lands  where  the  mineral  rights  have  been  reserved  in  the  grant 
from  the  Crown,  a  prospecting  license  is  required.  This  is 
obtainable  from  the  local  Magistrate  at  a  cost  of  10  shillings, 
and  is  good  for  a  calendar  month.  Thereafter  it  is  renewable 
indefinitely  at  a  cost  of  five  shillings,  payable  monthly  in  advance. 
It  conveys  only  the  right  to  prospect  and  explore  up  to  the  point 
of  producing  mineral,  but  ore  so  produced  cannot  be  sold,  milled 
or  smelted,  or  in  any  way  turned  into  money  (except  by  the  sale 
of  the  claim  and  all  upon  it),  until  a  claim  license  has  been  taken 
out. 

The  unit  lode  mining  claim,  which  applies  to  all  varieties  of 
lodes,  veins,  or  deposits  in  rock  in  place,  is  a  rectangle  measuring 
150  feet  along  the  outcrop,  and  400  feet  across  it. 

The  unit  alluvial  claim  is  a  rectangle  measu  ing  150  feet  on 
each  side. 

The  first  discoverer  of  a  mineral  deposit  of  the  first  class  on 
private  land  has  the  right  to  stake  up  to  75  of  such  unit  claims, 
provided  they  are  laid  out  so  as  to  leave  no  vacant  spaces  between, 
and  in  the  form  of  a  rectangular  block  whose  length  does  not 


SOUTH  AFRICAN  SYSTEM  OF  MINING  LAW  195 

exceed  twice  its  width,  and  provided  the  block  so  formed  does 
not  exceed  in  area  one-twentieth  of  the  area  of  the  private  tract 
in  which  the  discovery  is  made. 

The  first  discoverer  of  an  alluvial  deposit  on  private  land,  has 
the  right  to  stake  up  to  20  claims  of  the  second  class,  to  be 
laid  out  in  a  rectangular  block  as  in  the  former  case,  and  also 
provided  the  area  does  not  exceed  a  similar  proportion  of  the 
tract. 

In  both  these  cases  the  discoverer  may  work  his  claim  and 
realize  upon  his  product,  without  payment  of  any  claim  license 
money,  so  long  as  he  remains,  in  good  faith,  the  actual  owner 
thereof.  But  to  maintain  that  right  his  prospecting  license  must 
be  promptly  renewed  monthly  in  advance. 

To  prospect  upon  Crown  land  an  application  must  be  made  to 
the  Lieut.  Governor,  specifying  the  area  desired.  Whereupon, 
at  the  discretion  of  this  official,  and  upon  terms  and  conditions 
mutually  satisfactory,  an  exclusive  right  to  explore  the  same 
may  be  obtained.  The  law  provides  no  other  way  for  the  explora- 
tion of  the  public  Domain. 

A  discoverer  operating  under  such  a  franchise  or  concession, 
has  the  right  to  locate  51  claims  of  the  first  class  and  25  of  the 
second.  In  both  cases  to  be  laid  out  in  a  compact  rectangular 
block,  whose  length  does  not  exceed  twice  its  width.  So  long 
as  such  discoverer  or  discoverers  remain  the  actual  sole  owners 
of  the  ground  so  located,  they  may  extract  mineral  and  realize 
on  the  same  without  payment  of  claim  licenses. 

All  such  discoveries  hereinbefore  cited  must  be  reported  to  the 
local  Magistrate  within  30  days. 

When  any  such  discoveries  are  made,  the  region  is  at  once 
visited  by  an  official  called  a  Mine  Inspector.  If,  in  h's  op  nion, 
it  is  of  importance,  the  Governor  has  the  power  and  is  under 
obligations  to  proclaim  it  a  " Public  Digging,"  to  be  thrown 
open  at  a  certain  date.  If,  however,  the  Inspector  reports  that 
the  discovery  is  of  minor  importance,  and  not  likely  to  result  in 
the  development  of  payable  ore  or  ground  in  any  quantity,  the 
matter  is  left  in  abeyance. 


196  INTERNATIONAL  MINING  LAW 

During  the  interval  between  the  proclamation  and  the  date 
set  for  opening  a  "  Public  Digging,"  the  discoverer  on  Crown  land 
has  the  right  in  addition  to  the  51  claims  he  has  already  located, 
to  stake  out  an  area  called  a  "mynpacht."  The  size  of  this  grant 
is  determined  by  the  agreement  previously  made  between  the 
prospector  and  the  Lieut.  Governor. 

During  the  same  interval,  when  the  discovery  has  been  made 
upon  private  land,  whose  precious  metal  and  precious  stone 
rights  were  not  reserved  by  the  government  when  the  tract  was 
alienated,  and  where  the  owner  himself  has  conducted  explora- 
tions or  permitted  others  to  do  so,  the  said  owner  has  the  right 
to  locate  for  himself  a  "mynpacht"  the  extent  of  which  must  not 
exceed  75  claims,  nor  one-tenth  of  the  area  of  the  tract.  But 
before  doing  so  he  must  take  out  a  prospecting  license  at  its 
regular  cost  of  10  shillings,  which  is  renewable  monthly  up  to 
a  total  period  of  20  years,  at  the  same  price.  In  addition,  the 
owner  has  the  further  right  to  locate  another  block  of  claims  up  to 
75  in  number,  provided  that  number  does  not  exceed  one-twen- 
tieth of  the  area  of  the  tract.  On  this  block  the  usual  claim 
license  fees  are  payable. 

No  such  privileges  as  these  accrue  to  land  owners  in  whose 
deeds  the  precious  metal  and  precious  stone  rights  have  been 
reserved. 

When  an  area  has  been  proclaimed  as  a  " Public  Digging," 
has  been  duly  advertised,  and  the  first  discoverer  has  exercised 
his  rights,  the  surface  owner  (if  it  be  on  alienated  land)  has  staked 
off  the  areas  allowed  him,  and  the  date  has  arrived  for  the 
public  opening,  two  procedures  may  be  followed  by  prospectors 
who  may  desire  to  make  other  locations. 

Upon  private  land,  the  law  provides  that  during  the  period 
between  the  proclamation  and  the  date  of  opening,  all  prospectors 
who  desire  to  locate  claims  on  the  proclaimed  area  may  register 
their  names  on  a  public  list  which  is  posted  on  the  bulletin  board 
at  the  office  of  the  local  Magistrate,  each  such  registration  to  be 
accompanied  by  a  fee  of  20  shillings.  When  the  opening  day 
arrives  each  prospector  is  allowed,  in  the  order  in  which  his  name 


SOUTH  AFRICAN  SYSTEM  OF  MINING  LAW  197 

appears  on  the  list,  to  locate  up  to  50  claims  of  the  first  class,  or 
up  to  three  of  the  second. 

Upon  Crown  land,  during  the  period  between  proclamation 
and  opening,  the  government  surveys  out  the  land  in  blocks  of 
six  claims  each,  which  upon  the  opening  day  are  sold  at  auction 
to  licensed  prospectors. 

As  soon  as  a  claim  or  block  of  claims  is  staked  out,  and  pos- 
session given,  claim  licenses  become  due.  These  are,  for  a  claim 
of  the  first  class  five  shillings  per  month,  and  for  the  second  class 
20  shillings. 

All  claims  must  be  surveyed  at  owner's  expense  within  six 
months  of  the  date  of  the  first  claim  license,  and  a  plat  of  the  same, 
in  triplicate,  approved  by  the  Surveyor  General,  and  bearing  a 
stamp  of  the  value  of  ten  shillings,  must  be  filed  with  the  local 
Magistrate. 

Within  three  days  of  making  a  precious  metal  or  precious  stone 
discovery  of  any  kind,  the  discoverer  must  report  the  fact  to  the 
local  Magistrate,  and  file  with  him  a  sketch  plan  showing,  as 
nearly  as  possible,  the  situation  and  surrounding  land  marks. 

The  production  of  and  realization  upon  ore  or  metal  found 
may  begin  any  time  after  payment  of  claim  licenses,  but  not 
before. 

As  soon  as  production  and  realization  occur,  claim  licenses  of 
the  first  class  advance  to  20  shillings  per  month,  but  are  reduced 
to  five  shillings  when  production  ceases.  There  is  no  change 
under  similar  conditions  as  to  claims  of  the  second  class,  as  they 
are  supposed  to  be  productive  from  the  start. 

If  a  claimholder  neglects  development,  his  claim  license,  at  the 
discretion  of  the  Mine  Inspector,  may  be  doubled,  and  continue 
doubled  until  reasonable  development  work  is  begun. 

Failure  to  pay  claim  licenses  promptly  in  advance  each  month 
gives  the  authorities  the  right,  after  due  and  reasonable  notice, 
to  declare  the  claim  forfeited. 

Forfeited  claims  are  sold  at  auction,  and  all  cash  received,  after 
deducting  all  dues  and  fines  in  arrears,  is  divided  equally  between 
the  government  and  the  former  owner. 


198  INTERNATIONAL  MINING  LAW 

BASE  METALS,  COAL,  OIL,  SULPHUR,  SALT   AND  ALL  OTHER 
DESIRABLE  MINERALS  AND  SUBSTANCES 

These,  when  found  on  alienated  lands,  belong  without  reserve 
to  the  owners  of  the  same.  The  government  makes  no  claim  of 
any  kind  upon  them,  and  the  permission  of  the  surface  owner 
must  be  obtained  to  search  for  them.  No  prospecting  license  or 
claim  license  is  required.  The  prospector  deals  directly  with  the 
surface  owner. 

If  it  is  desired  to  prospect  for  them  on  Crown  land,  the  pros- 
pecting license  costs  2s.  6d.  on  application,  and  five  shillings  per 
month  thereafter.  To  secure  exclusive  prospecting  rights  over 
any  given  area,  an  application  must  be  made  to  the  Lieut. 
Governor,  who  will  grant  rights  subject  to  such  conditions  as  he 
may  deem  proper.  The  law  makes  no  provisions  for  filing  claims 
on  discoveries  of  these  substances,  and  imposes  no  claim  license. 
In  lieu  thereof  a  royalty  on  the  gross  value  of  the  metal  or  material 
won  is  imposed,  which  is  never  less  than  2J^%. 

All  discoveries  on  either  class  of  land  must  be  reported  within 
60  days  to  the  local  Magistrate. 

The  government  reserves  the  right  to  levy  a  tax  on  all  mining 
properties  of  this  class,  in  addition  to  royalty,  the  same,  however, 
never  to  be  in  excess  of  1J^%  on  the  gross  value  of  the  metals  or 
minerals  produced. 

GENERAL  PROVISIONS 

On  precious  metal  and  precious  stone  claims  a  procedure  called 
" Special  Registration"  is  required  within  three  months  after 
production  begins.  The  costs  are  moderate,  and  the  process 
simple.  When  completed,  the  title  is  incontestable  except  for 
fraud,  so  long  as  claim  license  payments  are  promptly  met  when 
due. 

No  claims  of  any  kind  may  be  located  on  Sundays,  or  on  public 
holidays,  or  between  sunset  and  sunrise. 

Alluvial  claims  may  be  located  and  worked  on  top  of  the  other 
class  of  claims,  provided  proper  security  is  given  to  the  owner  or 


SOUTH  AFRICAN  SYSTEM  OF  MINING  LAW  199 

owners  of  the  latter,  to  cover  possible  interference  or  damage,  or 
their  permission  is  secured. 

Conveyancing  rights  are  complete  on  all  claims  that  have  been 
surveyed,  and  the  fees  for  recording  the  same  are  reasonable. 

Individuals  may  hold  by  purchase  an  unlimited  number  of 
claims. 

Claims  cannot  be  abandoned  without  first  informing  the  local 
Magistrate  of  the  intention,  and  filing  with  him  a  map  of  the 
premises  approved  by  the  Surveyor  General  and  bearing  a  stamp 
of  ten  shillings. 

Prospecting  and  mining  are  prohibited  within  200  yards  of  any 
building,  public  park,  reservoir,  ditch,  railroad  or  other  public 
utility,  or  of  a  cultivated  area. 

Raw  gold  cannot  be  used  as  money,  nor  may  it  be  legally 
acquired  in  any  way  from  a  person  of  color. 

It  is  illegal  to  prospect  or  mine  for  any  base  metal  or  any  other 
mineral — except  gold,  silver,  or  gems — upon  a  precious  metal  or 
precious  stone  claim. 

Water  rights  are  obtainable  at  reasonable  cost,  and  title  to  the 
same  are  maintained  by  reasonable  usage. 

Explosives  may  be  purchased  only  by  securing  a  permit  from 
the  local  Magistrate,  which  permit  must  bear  a  stamp  of  one 
shilling.  They  may  be  used  only  by  individuals  holding  a 
" blasting  certificate."  This  is  issued,  free  of  charge,  to  any 
party  who  gives  satisfactory  evidence  to  the  Chief  Inspector  of 
Mines  that  he  knows  how  to  handle  explosives  safely. 

SOUTHERN  RHODESIA 

(Law  of  1903,  with  amendments  to  date  of  January  1st,  1917) 

By  virtue  of  an  agreement  with  the  government  of  Great 
Britain,  the  right  of  searching  and  mining  for,  and  disposing  of 
all  metals,  minerals,  and  mineral  oils  throughout  the  entire 
territory  of  Southern  Rhodesia,  whether  found  upon  unoccupied 
land,  or  upon  land  the  surface  of  which  has  been  alienated,  is 
vested  in  the  British  South  Africa  Company,  which  also  governs 
and  administers  the  country. 

14 


200  INTERNATIONAL  MINING  LAW 

This  corporation  does  not  grant  fee  simple  titles  to  its  mineral 
lands,  but,  subject  to  the  provisions  of  the  mining  law  and  the 
regulations  thereunder,  grants  usage  of  the  same,  with  full  rights 
to  recover,  dispose  of,  and  realize  upon  all  values  that  may  be 
found  therein. 

Prospecting  is  not  free.  But  any  individual  of  legal  age  and 
status,  of  either  sex,  or  the  agent  of  a  company  legally  authorized 
to  do  business  in  the  country,  may  take  out  any  desired  number  of 
Prospecting  Licenses,  at  a  cost  of  £1  each.  Every  such  license 
conveys  the  right  to  prospect  in  any  part  of  the  country  not 
already  occupied  for  mining  purposes,  to  stake  off  one  mining 
location,  consisting  of  ten  or  less  unit  mining  claims,  or  one  allu- 
vial claim,  or  one  claim  of  any  other  class  of  mining  tenement,  and 
to  explore  the  same;  and,  after  they  are  registered,  to  sell,  and 
make  all  other  usual  conveyances.  Such  transfers,  however, 
must  be  made  through  the  proper  offices  of  the  B.  S.  A.  Co.,  for 
which  a  small  fee  is  charged. 

Areas  exempted  from  prospecting  are  the  usual  ones,  such  as 
public  squares  and  parks,  cemeteries,  native  kraals  (towns),  and 
land  under  cultivation  or  otherwise  improved,  or  used  as  ditches, 
reservoirs  or  roads.  Nor  may  the  prospector  operate  nearer  than 
500  yards  to  a  homestead  and  its  appurtenances,  or  than  200 
yards  to  any  building,  except  with  the  written  consent  of  the 
owner  thereof. 

In  conducting  his  operations  the  prospector,  having  selected 
an  unoccupied  area,  is  first  required  to  post  conspicuously  a 
"Notice"  thereon,  entitled  a  " Prospecting  Notice,"  upon  which 
is  written  his  name,  date  of  posting  and  number  of  license.  When 
this  is  done  it  confers  the  exclusive  right,  for  the  succeeding  31 
days,  to  prospect  within  a  circular  area  with  a  radius  of  1000  feet 
from  the  notice. 

If  a  promising  discovery  is  made  within  such  an  area  during 
the  period  named,  and  the  discoverer  desires  to  acquire  posses- 
sion of  it,  he  must  plant  a  post  at  the  discovery  place  inscribed 
with  the  initials  D  P  (discovery  post),  and  also,  before  the 
expiration  of  the  term  he  may  stake  off  a  location  or  block  of 


SOUTH  AFRICAN  SYSTEM  OF  MINING  LAW  201 

ten  unit  mining  claims,  within  which  block  must  be  the  D  P 
post.  This  block  in  shape  must  be  a  parallelogram  not  over 
1500  feet  in  length  and  600  feet  in  width,  with  substantial 
stakes  or  stone  monuments  at  each  of  its  four  corners  and  at  the 
centers  of  the  end  lines.  It  is  not  required  to  erect  stakes  at  the 
corners  of  the  unit  claims  of  which  the  block  or  mining  location 
is  composed.  Following  the  staking  a  registration  notice  must 
be  posted,  upon  which  is  given  the  name  of  the  claimant,  the 
date  of  posting,  the  number  of  the  license  under  which  the  loca- 
tion is  made,  a  sketch  plan  of  the  location  showing  its  shape  and 
the  length  of  the  center  and  end  lines,  and,  as  closely  as  possible, 
the  cardinal  points  of  the  compass.  The  location  must  always 
be  laid  off  with  its  length  along  the  strike  of  the  vein,  and  upon 
each  of  its  six  stakes  must  be  inscribed  the  number  of  the  license 
under  which  it  is  claimed. 

Within  31  days  thereafter  a  copy  of  both  the  prospecting  and 
registration  notices  must  be  filed  at  the  office  of  the  nearest 
Mining  Commissioner,  together  with  a  sketch  plan  of  the  claim 
indicating  approximately  its  position  with  respect  to  surrounding 
landmarks.  The  recording  fee  is  five  shillings.  At  the  same 
time  the  principal  metal  or  metals  or  minerals  for  which  the 
claim  is  to  be  worked  must  be  named,  and  the  license  under  which 
it  was  located  surrendered.  In  consideration  of  the  performance 
of  all  these  things  the  claimant  is  given  a  "Certificate  of  Registra- 
tion," which  is  prima  facie  evidence  of  his  title.  Within  four 
months  thereafter  all  the  location  stakes  must  be  replaced  by 
temporary  stone  monuments  (not  necessarily  of  masonry),  not 
less  than  two  feet  high  and  four  feet  in  diameter  at  their  base, 
from  the  center  of  the  top  of  which  must  project  a  wooden  or 
iron  stake  to  the  height  of  two  feet  more,  to  which  must  be 
attached  a  plate  of  metal  or  wood  not  less  than  nine  inches 
square,  bearing  the  name  of  the  claim  and  all  the  data  given 
on  the  prospecting  notice.  Claims  may  be  located  on  any  day 
of  the  year,  but  not  during  the  hours  between  six  P.  M.  and  six 
A.  M.  standard  South  African  time. 

A  mining  location  so  made  gives  the  holder  thereof,  so  long  as 


202  INTERNATIONAL  MINING  LAW 

the  title  thereto  is  maintained  in  accordance  with  the  further 
provisions  of  the  law,  the  right  of  mining  all  lodes  or  reefs  within 
the  boundary  lines  projected  downward  vertically  to  an  indefinite 
depth,  and  also  the  extralateral  right  of  pursuit  of  the  lode  upon 
which  the  discovery  was  made,  between  vertical  planes  passing 
through  the  end  lines  of  the  claim  indefinitely  extended  both 
horizontally  and  vertically.  The  holder  has  also  the  exclusive 
right  to  the  ownership  of  any  alluvial  gold  or  other  metal  that 
may  be  found  on  the  surface,  and  to  the  use  of  the  surface  within 
his  lines.  But  the  right  to  produce  and  realize  upon  ores  or  metals 
revealed  by  development  work  is  not  yet  granted,  and  does  not 
accrue  until  a  tax  called  " claim  license"  is  paid,  as  hereafter 
detailed. 

Within  four  months  after  registration  at  least  30  feet  of 
development  work  (sinking  or  drifting)  must  be  done.  During 
each  calendar  year  succeeding  the  end  of  this  four-month  period, 
the  claimant  must  execute  at  least  60  feet  of  development  work 
on  his  ground,  must  make  a  sworn  statement  to  that  effect,  and 
file  it  with  the  Mining  Commissioner,  accompanied  with  a  fee  of 
ten  shillings.  In  return,  a  document  termed  an  "  Inspection 
Certificate"  is  issued  to  him,  which  has  the  effect  of  protecting 
the  title  to  the  location  during  the  following  calendar  year. 

The  unit  lode  mining  claim  is  nominally  a  rectangular  paral- 
lelogram, the  maximum  length  of  each  of  the  two  shorter  lines 
being  150  feet,  which  must  be  laid  out  in  the  supposed  direction 
of  the  course  of  the  lode,  and  which  is  called  its  length,  and  of  each 
of  the  shorter  sides  600  feet,  laid  out  at  right  angles  to  the  others, 
and  called  the  width.  Any  number  of  these  not  exceeding 
ten,  adjoining  each  other  on  their  long  sides,  may  be  located  as  a 
" block"  or  " mining  location,"  under  the  right  conferred  by 
the  prospecting  license.  When  the  block  or  location  includes  the 
full  ten  unit  claims  permitted,  it  forms  a  rectangular  parallelo- 
gram measuring  1500  feet  on  its  longer  sides,  and  600  feet  on 
its  shorter.  For  all  purposes  connected  with  the  maintenance  of 
title  and  of  development,  the  block  of  ten  or  less  unit  claims  is 
the  unit  considered.  But  when  the  production  of  ore  begins,  a 


SOUTH  AFRICAN  SYSTEM  OF  MINING  LAW  203 

further  form  of  permit  is  required  as  stated  above,  which  is  called 
a  claim  license.  For  this,  the  unit  claim  of  150  by  600  feet  is 
the  basis  of  all  calculations.  This  license  must  be  paid  on  all 
such  unit  claims  from  which  ore  is  being  extracted,  but  is  not 
demanded  upon  those  which  are  not  yielding  any  material  of 
value. 

The  unit  alluvial  claim  is  a  rectangle  200  feet  square.  Only 
one  of  these  may  be  taken  under  the  authority  of  a  prospector's 
license.  There  is  no  such  thing  as  a  block  of  alluvial  claims, 
but  a  prospector  may  locate  as  many  of  them  as  he  chooses, 
provided  he  holds  an  equal  number  of  prospecting  licenses.  Each 
one — although  they  may  adjoin — must  be  staked  in  the  same 
manner  and  with  the  same  notices  and  other  formalities  as  in 
the  case  of  a  lode  location,  and  registered  within  31  days  there- 
after. Registration  fee  is  five  shillings.  At  the  same  time 
the  claimant  must  take  out  a  license  to  work.  This  document 
costs  five  shillings,  and  is  good  for  30  days  only.,  It  is,  however, 
renewable  indefinitely  at  the  same  cost,  provided  the  ground  is 
worked  continuously,  except  on  Sundays  and  legal  holidays. 
All  gold  or  other  metal  or  mineral  recovered  from  the  operations 
must  be  declared  to  the  government  monthly,  and  a  royalty  of 
2>2%  paid  thereon. 

All  registered  mining  locations  are,  by  the  terms  of  the  law, 
held  by  the  owner  thereof  on  joint  account  with  the  British  South 
Africa  Company — called  familiarly  the  Chartered  Company — in 
the  proportion  of  70%  to  the  former  and  30%  to  the  latter; 
and,  except  as  to  alluvial  claims,  or  other  claims  for  which  special 
provisions  are  made,  no  metals  or  ores  of  any  kind  may  be  taken 
away  from  them  and  realized  upon  in  any  manner,  until  such 
time,  and  upon  such  terms  as  may  be  mutually  agreed  between 
the  two  partners.  To  this  end,  any  claim  holder  who  desires  to 
begin  the  production  of  ore  is  invited  to  submit  to  the  Chartered 
Company  the  details  of  a  scheme  by  which  the  interest  of  the 
Company  may  either  be  discharged,  or  otherwise  taken  care  of. 
This  takes  the  form  either  of  the  organization  of  a  public  company 
and  the  delivery  of  30%  of  its  capital  stock  to  the  Chartered 


204  INTERNATIONAL  MINING  LAW 

Company;  or  of  an  agreement  to  develop,  equip,  and  operate 
entirely  at  the  expense  of  the  claimholder,  and  pay  to  the  Char- 
tered Company  in  perpetuity  an  agreed  percentage  of  all  values 
recovered.  If  either  of  these  programs  is  accepted  the  requisite 
authority  is  granted,  and  thereafter,  as  long  as  the  provisions 
of  the  contract  entered  into  are  observed,  the  claimholder 
possesses  all  the  privileges  of  an  actual  owner.  In  the  event  of 
an  arrangement  of  the  second  class  being  entered  into,  the  royal- 
ties range  from  2J^  %  to  7  J£  %  on  the  gross  value  at  the  mine 
of  any  and  all  metals  and  minerals  recovered  according  to  cir- 
cumstances, and  are  payable  monthly. 

In  addition  to  stock  received  in  commutation  of  its  30% 
interest,  in  all  cases  where  property  is  capitalized,  and  also 
in  addition  to  royalties  in  lieu  of  the  same  when  properties  are 
developed,  equipped  and  operated  solely  at  the  expense  of  the 
claim  holder,  the  Chartered  Company  reserve  the  right  to  impose 
and  collect  the  tax  called  the  "claim,  license "  on  all  ground 
where  permission  has  been  granted  to  mine  in  either  way, 
amounting  to  10  shillings  per  month.  For  a  full  block  of  unit 
claims  of  the  dimensions  of  1500  by  600  feet,  this  tax  amounts 
to  about  $450  per  year,  but  is  payable  only  for  such  unit  claims 
as  for  the  time  being  are  producing.  Again,  under  certain 
conditions,  the  tax  is  reduced  to  five  shillings  per  month,  and 
during  periods  of  time  when  production  ceases  altogether,  either 
from  exhaustion  of  ore,  or  the  injury  or  destruction  of  part  or 
all  of  the  equipment,  or  other  proper  causes,  exemption  altogether 
may  be  secured.  In  such  cases,  however,  annual  inspection 
fees  on  each  block  of  claims  must  be  paid,  or  labor  to  their 
equivalence  performed. 

The  right  to  a  mining  location  carries  with  it  the  exclusive  use 
of  the  surface  thereof  for  all  bona  fide  mining  purposes,  but  if  it  is 
desired  to  open  a  store  thereon  and  transact  a  general  merchan- 
dise business,  a  license  to  do  so  must  be  procured. 

After  the  registration  of  a  mining  claim  the  right  to  sell  or  en- 
cumber it  is  complete,  provided  the  grantee  in  the  transaction  is 
legally  capable  of  receiving  the  title,  and  provided  also  that  the 


SOUTH  AFRICAN  SYSTEM  OF  MINING  LAW  205 

transaction  is  conducted  in  the  office  of  a  Mining  Commissioner, 
and  under  the  formalities  and  regulations  provided.  A  document 
evidencing  a  sale  costs  £1,  and  in  case  the  consideration  is  in 
excess  of  £100,  there  is  a  transfer  fee  of  1  %  of  whatever  may  be 
the  excess. 

Mining  locations  that  have  not  been  registered  may  be  aban- 
doned by  simply  withdrawing  the  stakes  and  posting  a  notice  of 
abandonment  on  the  post  where  the  first  notice  was  placed.  But 
after  registration  a  ''Certificate  of  Abandonment"  must  be  taken 
out  at  the  office  of  the  Mining  Commissioner,  at  a  cost  of  £1. 

The  holder  of  a  registered  mining  location  may  locate  residence, 
mill,  tailings  or  reservoir  sites,  or  areas  for  any  other  purpose 
legitimately  connected  with  mining,  not  exceeding  a  total  of 
five  in  number,  and  not  covering  a  total  of  more  than  100  acres, 
upon  any  ground  adjoining  or  in  the  vicinity  of  his  claim  that  is 
still  unojccupied,  and  without  the  purchase  or  usage  of  prospecting 
licenses  to  represent  them.  All  such  areas  must  be  staked,  posted 
with  notices  and  registered  in  the  same  general  way  as  with 
mining  locations,  but  the  right  is  reserved  by  the  government  to 
reject  such  locations  if  in  its  opinion  there  is  just  cause  for  doing 
so.  If,  however,  the  tender  for  registration  is  accepted  by  the 
Commissioner  of  Mines,  certificates  of  registration  will  be  issued 
which  will  cost  at  the  rate  of  £1  per  acre  of  area,  and  thereafter 
rental  at  the  rate  of  five  shillings  per  acre  per  month  is  required. 
Every  site  or  tract  so  accepted  and  registered  is  thereafter  in- 
alienably attached  to  the  particular  mining  location  for  the  use  of 
which  it  was  taken  out,  and  the  title  thereto  passes  with  that  of 
the  claim.  Upon  and  under  such  sites  the  claim  holder  acquires 
all  mining  rights  except  that  of  the  extralateral  pursuit  of  veins 
therein. 

The  right  to  prospect  for  the  base  metals  as  well  as  for  all 
minerals  is  included  in  the  privilege  resulting  from  the  possession 
of  a  Prospector's  License.  When  a  location  is  made  the  processes 
of  staking,  notice  posting,  registration  and  maintenance  are 
similar  to  those  already  described  for  gold;  and  when  locators  of 
property  of  this  kind  are  ready  to  produce — or  "work  for  profit" 


206  INTERNATIONAL  MINING  LAW 

as  the  law  expresses  it — the  prospecting  area  is  convertible  into 
a  mining  location  in  the  same  way.  But  when  this  point  is 
reached  the  details  for  further  procedure  vary. 

What  is  called  a  "  copper  location,"  and  which  appears  to 
apply  to  all  base  metals,  may  be  staked  off  in  any  necessary  shape 
so  long  as  the  boundaries  are  straight  lines,  and  has  a  maximum 
area  of  30  unit  claims  instead  of  10,  covering  therefore  approxi- 
mately 63  acres.  The  registration  notice  must  mention  the 
metal  or  mineral  which  is  expected  to  be  found  and  worked  for. 
The  registration  fee  is  £1. 

Ore  extraction  can  begin  at  once  or  at  any  time,  but  as  soon  as 
it  does,  claim  license  money  is  due  at  the  rate  of  £5  per  claim  per 
month  for  the  claims  producing  mineral.  In  addition,  royalties 
on  the  gross  value  of  the  output  at  the  mine  are  demanded  as 
follows : 

On  Bismuth,  Cobalt,  Copper,  Mercury,  Molybdenum,  Nickel, 
Thorium,  Tin,  Tungsten,  Uranium,  and  Vanadium;  also  on  min- 
eral oils,  gas  and  salt,  at  the  rate  of  3%,  payable  monthly. 

On  Antimony,  Asbestos,  Barium,  Strontium,  Chromium, 
Graphite,  Gypsum,  Iron,  Lead,  Magnesite,  Manganese,  Mica, 
and  Zinc,  at  the  rate  of  2  %  monthly. 

THE  TRANSVAAL 

(Law  of  August  22nd,  1908,  with  amendments  and  additions  to  date  of 

January  1st,  1917) 

The  State  claims  the  exclusive  ownership  of  gold  and  silver, 
wherever  found  within  its  boundaries,  without  any  exceptions; 
and  of  all  other  metals  and  minerals  except  where  they  occur  on 
alienated  land  where  mineral  rights  have  not  been  reserved  in  the 
grant  from  the  Crown.  All  Crown  lands,  therefore,  which  are 
not  already  occupied  as  mining  properties,  are  open  to  prospect- 
ing and  exploration  for  all  the  metals  and  minerals,  and  also  all 
privately  owned  land,  excepting  when  in  use  for  residential  or 
cultivation  purposes,  unless  the  owners  themselves  are  already 
mining  upon  them,  and  unless  the  original  grant  under  which 


SOUTH  AFRICAN  SYSTEM  OF  MINING  LAW  207 

they  are  held  failed  to  reserve  the  ownership  of  the  base  metals 
and  the  valuable  minerals. 

Prospecting  is  not  free.  But  any  white  person  over  the  age  of 
sixteen,  and  any  legally  incorporated  company,  may  obtain  what 
is  called  a  " Prospecting  Permit,"  good  for  12  months,  and  for 
the  precious  metals  only,  at  a  cost  of  five  shillings.  This  gives 
the  holder  the  right  to  stake  out  one  area  measuring  not  more 
than  2000  ft.  square,  upon  which,  so  long  as  operations  are  con- 
ducted to  the  satisfaction  of  the  local  Mining  Commissioner,  and 
are  confined  solely  to  prospecting  and  exploration,  without 
production,  exclusive  rights  are  granted.  Such  areas,  however, 
may  not  be  selected  within  the  limits  of  any  town,  public  park, 
cemetery  or  other  public  reserve ;  nor  within  300  feet  of  any  spring, 
well,  stream,  reservoir  or  water  works,  or  within  600  ft.  of  any 
building. 

Moreover,  after  the  areas  have  been  selected  and  staked, 
prospecting  must  not  begin  until,  after  notice  in  the  govern- 
ment Gazette,  and  advertising  in  a  newspaper  circulating  in  the 
vicinity  (if  any),  the  Minister  of  Mines  has  declared  it  open. 

If  the  area  desired  is  upon  alienated  land,  the  application  for 
the  "  Prospecting  Permit "  must  be  accompanied  by  the  written 
consent  of  the  surface  owner. 

All  discoveries  made  upon  such  areas  must  be  reported  to  the 
Mining  Commissioner  within  14  days.  If,  upon  examination,  this 
official  considers  the  discovery  of  sufficient  importance,  he  will 
give  the  holder  of  the  "Permit"  a  document,  authorizing  him 
within  a  stated  period  (not  to  exceed  30  days),  to  stake  out  his 
claims  within  the  area  covered  by  the  "Permit." 

The  size  of  the  unit  claim  is  150  by  400  feet.  If  the  discovery 
has  been  made  upon  private  land  the  permit  holder  may  stake 
an  area  which  must  be  at  least  the  equivalent  of  10  of  these  units, 
but  may  not  be  greater  than  the  equivalent  of  50  of  them;  if 
on  Crown  land,  the  minimum  is  the  equivalent  of  25  units,  and 
the  maximum  the  same  as  in  the  other  case.  A  further  rule 
prescribes  that  the  block  of  claims,  when  staked,  must  be  rec- 
tangular in  shape,  with  length  not  greater  than  twice  its  width; 


208  INTERNATIONAL  MINING  LAW 

and,  finally,  it  must  not  comprise  a  total  area  greater  than  one- 
ninetieth  of  the  total  area  which  is  to  be  proclaimed  as  a  result  of 
the  discovery,  or,  as  the  law  puts  it,  the  equivalent  of  "one  claim 
to  every  sixty  morgen,"  the  "morgen"  being  approximately 
2.1  acres. 

As  soon  as  the  selected  area  is  staked,  the  permit  holder  is 
entitled  to  demand  a  "Certificate"  conferring  the  exclusive 
right  to  prospect  and  explore  upon  it  for  a  period  of  three  years 
from  its  date,  without  the  payment  of  any  claim  license  fees. 
But  this  certificate  does  not  give  the  right  to  extract  and  realize 
upon  any  ore  that  may  be  found;  and  further,  if  in  the  opinion 
of  the  Mining  Commissioner  operations  are  not  carried  on  with 
sufficient  energy,  claim  license  money  may  be  imposed  by  that 
official.  In  any  event,  these  become  payable  at  the  end  of  the 
three  year  term.  But  the  claimant  may  begin  production  and 
realization  at  any  time  within  the  term,  by  beginning  the  pay- 
ment of  claim  licenses. 

Before  ordinary  mining  claims,  other  than  those  already  de- 
scribed which  are  known  as  "prospecting  mining  claims,"  can 
be  located  by  anyone,  the  ground  must  be  proclaimed  as  a 
"Public  Digging,"  by  act  of  the  Governor,  and  after  a  due  course 
of  public  notices  and  advertising.  After  such  proclamation  no 
more  "prospecting  mining  claims"  may  be  located  upon  it,  but 
only  ordinary  mining  claims.  All  such  proclaimed  areas  are  care- 
fully monumented  by  the  government,  so  that  their  boundaries 
may  be  easily  traced  by  any  one.  Even  then  it  is  optional  with 
the  Governor  either  to  throw  the  region  open  to  public  location, 
or  to  lease  the  whole  or  any  part  of  it  to  individuals  or  corpora- 
tions, or  to  reserve  it  as  a  State  mine,  to  be  developed  and 
operated  under  the  supervision  of  the  government  Mining 
Engineer.  Finally,  he  possesses  the  power,  under  the  advice 
of  the  latter  official,  to  withdraw  the  land,  or  any  part  of  it,  but 
in  so  doing  may  not  affect  injuriously  any  of  the  rights  that  have 
already  been  acquired  upon  it. 

Mining  claims  may  be  staked  only  by  individuals  over  16 
years  of  age,  who  are  of  white  color  and  ancestry,  and  who  are  in 


SOUTH  AFRICAN  SYSTEM  OF  MINING  LAW  209 

possession  of  a  document  called  a  " prospecting  license."  Such 
licenses  are  sold  by  the  government  to  duly  qualified  persons, 
good  for  the  location  of  one  or  more  claims  (but  not  to  exceed 
fifty),  according  to  the  number  expressed  on  their  face,  at  the 
price  of  2s.  6d.  per  claim  if  for  use  on  Crown  land,  or  five  shillings 
per  claim  if  to  be  applied  on  privately  owned  areas.  Every  such 
license  expires  in  30  days  after  its  issuing  date,  but  is  renewable 
at  the  same  cost  twice.  The  staking  of  claims  on  Sundays  or 
public  holidays  or  between  sunset  and  sunrise  is  not  legal. 

All  mining  claims  staked  by  virtue  of  such  licenses  must  be 
rectangular  in  shape,  must  measure  150  by  400  feet  each,  must 
be  contiguous  if  blocked,  and  the  block  must  have  a  width  not 
greater  than  half  its  length.  Furthermore,  when  staked  upon  a 
lode,  the  short  side  of  each  claim  must  be  parallel  with  the  as- 
sumed outcrop  or  strike  of  the  vein,  and  the  long  side  across  it. 
No  extralateral  rights  exist.  The  outcrop  may  be  located  at 
any  distance  from  the  short  sides  of  the  claim  (but  within  it)  that 
the  locator  desires. 

The  act  of  staking  must  be  reported  at  the  office  of  the  nearest 
Mining  Commissioner  within  two  to  fourteen  days  (according  to 
the  distance  from  that  office),  and  seven  days  thereafter  perma- 
nent stakes  must  be  erected  at  all  external  angles.  Within 
one  month  the  claimant  must  present  to  the  Mining  Commissioner 
a  sketch  plan  of  the  claim  and  its  vicinity,  and  a  certificate 
from  the  hand  of  an  official  called  a  " Beacon  Inspector"  to 
the  effect  that  the  stakes  are  properly  set  and  in  order.  Under 
certain  conditions  the  Commissioner  has  the  right  to  demand  a 
survey. 

On  ground  so  located  and  approved,  three  months'  time  is 
given  free  of  claim  licenses  to  explore  and  begin  production,  and 
if  good  cause  is  shown  a  second  term  of  the  same  length  may  be 
granted  on  payment  in  advance  of  the  fees  first  paid.  At  the 
end  of  this  second  period  however,  and  in  any  event  as  soon 
as  production  begins,  the  " prospecting  license"  must  be  con- 
verted into  what  is  called  a  "digger's  license,"  and  thereafter, 
continuously,  claim  licenses  become  due  and  payable  in  advance 


210  INTERNATIONAL  MINING  LAW 

at  the  rate  of  20  shillings  per  month  per  claim  as  long  as  the 
property  is  held.  No  further  title  is  granted,  and  the  ground  may 
be  declared  forfeited  by  the  Mining  Commissioner  at  any  time, 
upon  default  of  the  prompt  payment  of  the  monthly  fees. 

The  surface  area  of  a  mining  property  so  acquired  can  only  be 
used  for  purposes  properly  incidental  to  the  natural  operations  of 
mining,  and  to  those  of  the  beneficiation  of  the  ore  produced.  It 
may  not  be  fenced. 

When  base  metals  are  found  in  a  mining  claim  the  Minister  of 
Mines  must  be  at  once  advised  of  the  fact.  This  official  may 
then,  at  his  discretion,  allow  the  discoverer  to  stake  out  up  to  100 
unit  mining  claims  of  150  by  400  ft.  in  size,  upon  payment  as  a 
claim  license  for  them  at  the  rate  of  one  penny  per  claim  per  month 
thereafter;  but  on  an  area  so  granted,  mining  for  the  precious 
metals  must  be  carried  on  only  upon  fifty  of  the  claims  so  taken. 

A  royalty  of  1%  of  the  value  of  all  base  metals  recovered  is 
demanded  by  the  government.  No  royalty  is  collected  on  the 
precious  metals. 

RESULTS 

Metal  production  in  South  Africa  dates  from  about  1879  when 
parcels  of  copper  ore  began  to  come  to  Swansea,  Wales,  for  reduc- 
tion, from  Namaqualand  on  the  west  coast  about  500  miles  north 
of  Capetown.  In  1887,  the  gold  mines  of  the  Transvaal  began 
their  remarkable  career,  and  in  1899  silver-lead  ores  were  first 
exported  from  Beira  on  the  east  coast.  Since  then  there  have 
been  intermittent  shipments  of  tin,  tungsten  and  chromium  ores 
from  various  points  in  the  Union  of  South  Africa  and  Rhodesia, 
but  not  in  sufficient  amount — except  as  to  chromium — to  be 
notable.  This  part  of  the  world  has  not  as  yet  any  metallurgical 
industry  beyond  the  individual  plants  at  the  gold  mines,  and 
consequently,  though  the  common  base  metals  such  as  copper, 
lead,  zinc  and  manganese  are  abundant,  there  is  no  market  for 
their  ores  nearer  than  Europe  or  America. 

The  metallic  output  of  this  field,  from  1879  to  the  end  of  1916 
has  been  as  follows: 


SOUTH  AFRICAN  SYSTEM  OF  MINING  LAW 


211 


Metal  Term 

Copper 38  years 

Gold 30  years 

Silver 18  years 


Totals 

!    119,750,505 
2,763,686,779 
7,302,978 

Annual  average 

$  3,151,329 
92,122,892 
405,721 

1916 

$  19,974,400 
210,404,000 
750,000 

$2,890,740,262         $95,679,942         $231,128,400 


These  figures  show  that  the  industry  is  in  a  flourishing  condi- 
tion, the  gains  of  1916  over  the  averages  for  the  several  periods 
having  been  534%  in  the  case  of  copper,  128%  in  the  case  of  gold 
and  85%  in  silver.  Because  it  has  consisted  mainly  of  gold  the 
South  African  production  has  not  been  affected  so  much  by  the 
abnormal  prices  for  the  metals  that  prevailed  during  the  last 
three  years  of  the  term,  though  the  large  increase  in  the  value  of 
the  output  of  copper  in  1915  and  1916  was  wholly  due  to  this 
cause,  as  will  be  seen  by  an  examination  of  the  following  table 
which  contains  no  figures  later  than  those  of  1913. 


South  Africa,  1879  to  1913:  Cape  Province,  Namaqualand,  Natal,  Orangia,  the  Transvaal 
and  Southern  Rhodesia 


Metal 

Term 

Years 
in 
term 

Total  product 
of  term 

Average 
annual 
product  dur- 
ing term 

Product  of 
1913 

Gain'(  +  ) 
or  loss  (  —  ) 
in  1913,  as 
compared 
with 
average 

Copper  

1879  to  1913 

35 

$83,921,005 

$2,397,743 

$5,740,353 

+  140%  ' 

Gold. 

1887  to  1913 

27 

2,156  091  952 

79  855,257 

196  045,566 

+  145% 

Silver  

1899  to  1913 

15 

5,412,978 

360,865 

609,625 

+  69% 

$2,245,425,935 

$82,613,865 

$202,395,544 

+  144% 

CHAPTER  XI 

THE    EUROPEAN  SYSTEMS  OF    MINING   LAW.     DIGESTS    OF 
THE  MINING  LAWS  OF  AUSTRIA-HUNGARY,  FRANCE,  GER- 
MANY, GREAT  BRITAIN,  ITALY,  NORWAY,  PORTUGAL, 
RUSSIA,  SPAIN,  SWEDEN,  TURKEY,  AND  SERBIA. 
RESULTS  OF  THE  SYSTEMS.     STATISTICS   OF 
PRODUCTION  FROM  1901  TO  1913 

THE  EUROPEAN  SYSTEMS 

In  Europe  no  public  land  remains,  that  is  to  say,  land  which 
can  be  purchased  from  the  government  as  may  be  done  in  the 
United  States,  Canada,  Australia,  and  throughout  much  of 
Central  and  South  America.  This  has  been  the  condition  for 
many  centuries.  In  Russia,  Austria,  Germany,  and  probably  in 
several  other  of  the  nations,  the  hereditary  rulers  are  vast  landed 
proprietors,  and  much  of  their  holding  can  probably  be  con- 
sidered as  State  land,  and  will  doubtless  become  so  when  their 
era  passes  away.  In  consequence  of  these  conditions  the  mining 
laws  in  force  are  only  of  the  kind  that  have  been  found  necessary 
to  compel  land  owners  to  allow  prospecting  on  their  property, 
and  when  a  discovery  is  made  to  give  the  discoverer  or  his  assigns 
the  right  to  mine.  This  has  been  attempted  in  various  ways,  and 
has  met  with  varying  degrees  of  success.  At  the  time  of  the 
break-up  of  the  Roman  Empire  the  doctrine  that  the  surface 
owner  was  also  the  exclusive  owner  of  everything  under  his  tract 
had  become  firmly  established,  and  this  view  is  still  rigidly  main- 
tained in  Great  Britain  and  has  been  transplanted  to  the  United 
States  and  Canada.  On  the  Continent  it  passed  away  early  in 
the  nineteenth  century,  under  the  intellectual  lead  of  France. 
In  its  place  was  installed  the  doctrine  that  undiscovered  mineral 

212 


EUROPEAN  SYSTEMS  OF  MINING  LAW  213 

was  "res  nullus,"  and  hence  belonged  to  the  body  politic  or  the 
ruling  sovereign,  in  whom  resided  the  right  to  make  concessions 
thereof,  in  accordance  with  legislation  enacted  by  Parliaments, 
or  decrees  promulgated  by  autocrats.  These  generally  have 
taken  the  form  of  long  term  grants,  by  which  the  authorities 
have  disposed  of  the  mining  rights  to  those  who  first  applied  for 
them  after  making  a  discovery,  leaving  the  concessionaire  to 
negotiate  with  the  soil  owner  if  possible  for  such  surface  ground 
as  might  be  needed  to  carry  on  operations  properly.  In  addi- 
tion, in  several  States,  the  government  is  itself  a  large  operator 
of  mines. 

Under  such  conditions  there  is  naturally  very  little  scope  for 
the  activities  of  prospecting.  New  discoveries  are  rare  occur- 
rences. Mining  is  everywhere  regarded  as  a  business  requiring 
the  outlay  of  large  capital  and  the  guidance  of  high  technical 
knowledge  and  experience.  Excluding  coal,  mineral  oil,  iron  and 
salt,  the  mineral  production  of  Europe  is  small  as  compared  with 
that  of  other  grand  divisions  of  the  world.  Nearly  all  of  the 
metal  recovered  annually  comes  from  mining  districts  and  mines 
that  have  been  known  for  hundreds  and  even  thousands  of  years, 
having  been  discovered  in  those  far  off  days  when  the  population 
was  relatively  sparse,  settlements  few  and  far  between,  and  un- 
occupied land  abundant. 

The  digests  that  follow  will  be  found  interesting  and  instruc- 
tive. That  there  are  yet  vast  undiscovered  mineral  resources  in 
Europe  is  confidently  believed  by  those  who  are  best  acquainted 
with  its  general  geology.  These  cannot  become  available  until 
discovered.  They  will  not  be  brought  to  light  by  scientists  or 
capitalists.  It  is  doubtful  if  the  business  of  prospecting  will 
revive  until  great  changes  have  occurred  in  social  as  well  as 
political  conditions.  A  realization  of  the  "impasse"  that  exists 
especially  in  Great  Britain,  may  lead  to  an  understanding  of  that 
which  might  in  due  time  be  reached  in  our  own  country  if  mean- 
time the  laws  in  regard  to  real  estate  are  not  fundamentally 
modified. 


214  INTERNATIONAL  MINING  LAW 

AUSTRIA-HUNGARY 

(Law  of  May  23rd,  1854) 

Prospecting,  even  by  the  surface  owner  on  his  own  ground,  is 
illegal  without  a  permit  from  the  authorities,  under  the  doctrine 
that  all  undersurface  mineral  substances  belong  to  the  State. 
Permits,  however,  are  freely  issued  at  nominal  cost,  good  for  a 
year  and  renewable  thereafter  from  year  to  year  indefinitely, 
but  are  not  exclusive,  and  carry  no  rights  beyond  that  of  surface 
inspection  on  privately  owned  land.  An  exclusive  right  to  de- 
velop and  explore  underground,  called  a  "Freischurf,"  can  be 
obtained  for  a  circular  tract  with  a  diameter  of  not  more  than 
half  a  mile,  by  the  planting  of  a  notification  stake  at  its  center, 
followed  by  immediate  notice  to  the  Director  of  the  Department 
of  Mines,  and  formal  application  in  writing  for  the  area  so  de- 
limited. This  is  recognized  and  protected  by  the  authorities  so 
long  as  they  continue  satisfied  that  intelligent  and  energetic  ex- 
ploring and  developing  work  is  in  progress,  and  after  registra- 
tion the  temporary  title  so  inaugurated  is  transferable. 

Within  the  tract  thus  held  the  explorer  may  at  any  time  during 
the  legal  period  of  his  occupancy,  claim  the  preferential  right  to 
a  permanent  mining  area,  provided  he  is  able  to  satisfy  the 
authorities  that  a  new  occurrence  of  valuable  mineral  has  been 
found  by  him  within  its  lines,  and  that  it  can  be  worked  at  a 
profit  with  the  means  at  his  command.  The  unit  claim  is  a 
tract  enclosing  about  10  acres  of  surface,  placed  as  desired  by  the 
concessionaire  so  long  as  it  is  wholly  within  the  limits  of  his 
prospecting  area.  With  it  goes  the  right  to  produce  and  realize 
upon  the  value  of  all  mineral  substances  found  vertically  beneath, 
and  without  further  obligations  of  any  kind  to  the  government, 
except  the  usual  forms  of  taxation,  or  to  the  surface  owner.  Nine 
of  these  units  may  be  combined  into  one  group  (18  in  the  case  of 
a  coal  mine)  and  any  desired  number  of  such  groups  may  be 
legally  located  and  held  by  an  individual  or  company  by  follow- 
ing the  procedure  outlined.  Maintenance  requirements  consist 
in  practically  continuous  work  to  the  satisfaction  of  the  Depart- 
ment of  Mines. 


EUROPEAN  SYSTEMS  OF  MINING  LAW  215 

The  latter  also  will  grant  to  the  first  applicant  a  right  to  oper- 
ate alluvial  deposits  lying  above  the  surface  of  the  bed  rock,  upon 
any  area  not  already  occupied  by  an  underground  mining  fran- 
chise, or  by  public  or  private  buildings,  or  other  surface  improve- 
ments, the  size,  term,  and  other  details  of  which  are  wholly 
matters  of  negotiation  between  the  applicant  and  the  authorities. 

In  all  cases  the  surface  owner  has  the  right  to  claim  indemnity 
for  damages  of  all  kinds  resulting  from  the  operations  of  the 
miner,  and  for  the  loss  of  the  use  of  the  land  necessarily  employed 
by  him  for  buildings,  dumps,  beneficiating  works,  and  other 
proper  mining  activities;  and  under  certain  exceptional  circum- 
stances he  may  compel  him  to  purchase  or  pay  rent  on  such  areas, 
if,  in  the  opinion  of  the  authorities,  no  other  method  of  indemni- 
fication would  seem  equally  just. 

FRANCE 

(Law  of  April  13th,  1810,  as  amended  April  27th,  1838,  January  16th,  1840, 
May  9th,  1866,  July  27th,  1880,  and  January  23rd,  1907) 

Mineral  substances  of  all  kinds  are  divided  into  three  classes, 
called  respectively  Mines,  Placers,  and  Quarries. 

Mines. — Combustibles  (coal,  oil  and  natural  gas);  ores  of  the 
Metals  when  occurring  in  rock  in  place;  deposits  of  sulphur, 
alum,  rock  salt,  baryta,  fluorspar  and  in  general  all  other  minerals 
usually  found  in  bodies  which  extend  into  and  below  the  surface 
of  the  bed  rock. 

Placers. — Metalliferous  alluvials,  and  all  desirable  minerals 
(except  Quarries)  occurring  in  the  surface  soil  as  parts  of  it,  and 
of  its  nature,  and  not  extending  from  it  into  and  below  the  surface 
of  the  bed  rock. 

Quarries. — Building  stone,  limestone,  peat,  clay,  and  analogous 
substances  'that  may  be  operated  by  uncovered  excavations. 

Materials  of  the  first  class  belong  exclusively  to  the  State,  and 
may  be  searched  for  and  worked  only  under  the  provisions  of  the 
law.  Placers  and  quarries  belong  to  the  owner  of  the  surface, 
but  all  operations  thereon  may  be  conducted  only  with  the 
knowledge  and  under  the  supervision  of  the  authorities. 

15 


216  INTERNATIONAL  MINING  LAW 

Prospecting  is  not  free;  a  permit  must  be  obtained  from  the 
government,  and  also  the  permission  of  the  soil  owner;  but  the 
latter  may  prospect  without  a  permit  on  his  own  land,  or  enter 
into  arrangements  with  another  to  do  so.  But  in  both  cases  the 
owner  must  first  notify  the  authorities  of  his  intentions.  When  it 
is  desired  to  explore  on  property  where  the  owner  will  not  volun- 
tarily give  permission,  a  special  permit  can  be  obtained  from  the 
Department  of  Mines. 

No  form  of  prospecting  permit  conveys  the  right  to  remove  and 
realize  upon  ore  found,  nor  to  search  for  other  substances  than 
those  specifically  mentioned  in  the  document.  Nor  are  these 
permits  transferable.  Further,  they  are  issued  under  the 
general  theory  that  within  a  reasonable  time  after  a  discovery 
has  been  made  the  holder  will  apply  for  a  grant  or  concession  for 
the  territory  believed  to  be  valuable.  If,  however,  before  doing 
so,  he  desires  to  remove  and  realize  upon  some  of  the  material 
found,  for  the  purpose  of  ascertaining  its  value  in  bulk,  or  for 
other  legitimate  purposes  having  a  bearing  on  the  application  for 
a  concession,  a  permit  authorizing  such  removal  and  sale  will  be 
granted  by  the  Prefet  of  the  Department.  All  prospecting 
operations  are  at  all  times  under  the  surveillance  of  the 
authorities. 

To  obtain  a  concession  for  mining  purposes  an  application  must 
be  made  to  the  Prefet  giving  the  name  and  address  of  the  appli- 
cant, the  area  of  ground  sought  and  its  situation  as  displayed  on  a 
map  made  to  a  scale  of  1  to  10,000  at  the  cost  of  the  applicant. 
This,  when  presented,  is  signed,  dated  and  recorded,  and  a  receipt 
given  for  it.  Any  number  of  such  applications,  made  by  any 
number  of  individuals  as  well  as  by  the  discoverer,  may  be  filed, 
and  will  be  considered.  Priority  of  filing,  even  by  the  discoverer, 
gives  no  preferential  rights,  and  the  government  reserves  the 
right  to  reject  all  or  to  select  any  one  of  them.  But  if  the  con- 
cession is  granted  to  any  one  but  the  discoverer,  the  latter  must 
be  suitably  indemnified  to  the  satisfaction  of  the  authorities  for 
both  his  labor  and  costs,  and  in  addition,  in  proportion  to  the 
importance  of  his  "find,"  by  the  concessionaire.  The  latter 


EUROPEAN  SYSTEMS  OF  MINING  LAW  217 

must  satisfy  the  government  as  to  his  capability  to  operate  econo- 
mically and  with  sufficient  capital.  A  deposit  of  cash  to  an 
amount  set  by  the  Pre*fet  must  then  be  made,  to  cover  the  costs 
of  investigation  of  title,  verification  of  the  map,  advertising,  etc. 

Upon  the  acceptance  of  an  application  a  notice  describing  the 
area  applied  for  is  posted  for  two  months  in  the  office  of  the 
Prefet,  and  a  copy  of  it  published  for  30  days  in  the  Official 
Gazette,  and  also  in  one  of  the  public  papers  of  the  vicinity  if 
there  are  any.  During  this  latter  term  all  objections  to  the  grant- 
ing of  the  concession  must  be  formally  lodged  with  the  Pre*fet. 
At  its  end  all  the  papers  go  to  the  Minister  of  Public  Works  for 
final  consideration.  This  official  has  the  right  finally  to  reject 
if,  in  his  opinion,  the  payability  of  the  property  has  not  been 
sufficiently  demonstrated.  If  granted,  a  decree  to  that  effect 
is  published,  and  the  claimant  is  formally  placed  in  physical 
possession  of  the  ground. 

The  right  thus  initiated  covers  only  under-soil  operations.  In 
the  eyes  of  the  law  it  is  real  estate,  transferable — together  with 
all  its  legitimate  surface  appurtenances,  such  as  buildings, 
machinery,  etc. — by  common  law  deed,  but  all  such  deeds  must 
be  approved  by  the  Department  of  Mines  and  carry  the  signa- 
ture of  its  Chief  to  be  valid.  It  includes  no  surface  rights.  Such 
as  are  necessary  must  be  secured  from  the  surface  owner,  but 
the  law  provides  means  by  which  these  may  be  obtained  on 
reasonable  terms.  If  the  ground  is  rented  the  owner  cannot 
claim  more  than  double  the  net  revenue  that  he  can  show  it  has 
been  yielding.  If  purchased,  the  price  cannot  exceed  double  its 
value  as  appraised  for  taxation.  Under  any  and  all  arrange- 
ments, however,  the  owner  can  insist  upon  adequate  support 
for  his  surface  in  all  its  parts,  unless  this  right  is  specifically 
waived. 

Mining  grants  are  good  only  for  the  substance  or  substances 
listed  therein,  but  when  unlisted  substances  are  found  in  such 
chemical  or  mechanical  combination  with  listed  ones  as  to  make 
their  simultaneous  production  and  recovery  an  economical  neces- 
sity, a  permit  will  be  given  allowing  their  extraction. 


218  INTERNATIONAL  MINING  LAW 

Concessionaires  must  monument  their  ground  and  maintain 
the  monuments  in  good  repair.  When  these  are  an  injury  to  the 
surface  owner  he  must  be  properly  indemnified.  Shafts  cannot 
be  sunk  or  levels  driven  nearer  than  50  meters  to  buildings  with- 
out first  giving  their  owner  30  days'  notice,  during  which  term 
the  latter  must  make  formal  demand  through  the  courts,  if 
necessary,  for  security  for  possible  damages. 

Mining  grants  cannot  be  united  without  the  permission  of  the 
Council  of  State.  Nor  may  they  be  abandoned  without  giving 
notice  of  the  intent  to  the  Prefet  and  awaiting  his  permission, 
which  is  given  only  after  due  formalities  for  the  protection  of 
creditors,  and  an  expert  examination  and  survey  of  the  mine. 

The  government  claims  an  annual  ground  rent  of  one  franc1 
per  hectare  of  area,  except  in  the  case  of  coal  mines  when  this 
tax  is  reduced  to  30  centimes  per  hectare.  But  this  impost 
does  not  begin  until  January  1st  of  the  third  calendar  year  of 
possession,  the  first  two  years  being  free.  In  addition,  a  royalty 
of  6%  of  the  net  profits  must  be  paid  each  year  for  the  business 
of  the  previous  year. 

The  area  of  a  concession  and  its  period  are  entirely  matters  of 
negotiation  between  the  applicant  and  the  authorities;  also  the 
matter  of  renewals  and  the  methods  to  be  adopted  in  operation. 
In  these  affairs  the  surface  owner  has  no  voice,  nor  can  he  make 
any  claims  for  rental  or  royalty. 

Forfeiture  of  grants  may  be  declared  by  the  authorities  when- 
ever rentals  or  royalties  are  not  promptly  paid,  if  the  orders  of 
the  Department  of  Mines  concerning  methods  of  operation  are 
not  satisfactorily  executed,  or  if  production  is  restricted  to  an 
extent  prejudicial  to  the  public  welfare.  A  forfeited  property 
cannot  be  granted  again  to  the  same  concessionaire. 

Soil  owners  who  wish  to  operate  placer  deposits  or  quarries 
upon  their  own  ground,  or  who  desire  to  give  such  privileges  to 
others,  must  take  out  government  licenses,  and  all  operations 
must  then  be  conducted  under  the  general  surveillance  of  the 

irThe  franc  is  worth  19.3  cents  in  U.  S.  gold.  It  is  divided  into  100 
centimes.  Hence,  5  centimes  are  nearly  the  equivalent  of  one  cent. 


EUROPEAN  SYSTEMS  OF  MINING  LAW  219 

Department  of  Mines,  and  under  the  general  laws  relating  to  the 
safety  of  workmen  and  to  sanitation. 

GERMANY 

There  are  two  mining  laws  in  force  in  the  German  Empire,  one 
of  which  governs  the  industry  in  the  kingdom  of  Prussia,  and  the 
other  in  the  kingdom  of  Saxony. 

THE  PRUSSIAN  LAW 
(Law  of  June  24th,  1865,  as  amended  July  1st,  1905,  and  June  18th,  1907) 

Prospecting  is  free  for  all  under-soil  mineral  substances  (which 
are  held  to  be  exclusive  State  property),  with  the  exception  that 
in  two  of  the  small  States  the  local  governments  have  reserved 
to  themselves  the  right  to  search  for  and  mine  coal  beds  and  de- 
posits of  certain  salts.  But  in  both  these  cases  the  right  exists 
to  delegate  these  privileges  to  others. 

If  a  surface  owner  refuses  to  allow  prospecting  on  his  property, 
the  explorer,  on  applying  to  the  authorities,  can  secure  the  desired 
right  upon  an  area  and  for  a  term  agreed  upon  between  them 
and  himself,  the  sole  consideration  being  the  execution  of  a  bond 
in  such  an  amount  as,  in  the  opinion  of  the  government,  will 
secure  the  owner  of  the  surface  suitable  compensation  for  damage 
that  may  result  from  the  operations. 

When  a  new  ore  vein  or  body  is  discovered  by  such  an  explorer, 
within  the  prospecting  area  granted  to  him,  he  can  obtain  mining 
privileges  on  the  same  by  written  application  made  to  the  authori- 
ties within  a  week  of  the  date  of  discovery.  In  case  of  failure  to 
do  this,  the  franchise  will  be  given  to  the  first  applicant  there- 
after who  is  able  to  prove  that  the  discovery  is  a  new  one,  that  it 
was  legitimately  effected,  and  that  it  is  of  sufficient  importance  to 
warrant  the  expectation  that  it  can  be  made  a  profitable  or  at 
least  a  self-sustaining  business  venture. 

Surface  owners  cannot  claim  any  interest  in  mineral  values 
recovered  from  under  the  surface  soil  of  their  property,  and  must 
allow  to  the  mining  operator  such  use  of  the  surface  as  maybe 


220  INTERNATIONAL  MINING  LAW 

reasonably  necessary.     On  his  part  the  miner  must  pay  a  proper 
rental,  or  purchase  the  ground  outright  at  a  fair  valuation. 

However,  the  law  gives  to  the  authorities  the  right  to  refuse 
arbitrarily  an  application  for  prospecting  or  mining  rights,  or 
both,  whenever  in  their  opinion  it  would  be  injurious  to  the  pub- 
lic order,  health,  or  safety  to  grant  them. 

THE  SAXON  LAW 
(Law  of  August  31st,  1910) 

The  State  claims  exclusive  ownership  of  all  ores  of  -the  metals 
,  except  bog  iron,  of  deposits  of  salt  and  its  associated  minerals,  of 
salt  springs,  and  of  all  radio-active  substances.  The  right  of 
searching  for  and  of  obtaining  mining  privileges  on  deposits  of 
the  first  class  (the  metals)  is  free  to  all.  The  State  reserves  the 
right  to  explore  for  and  work  the  others,  and  is  empowered  to 
delegate  this  right  to  individuals  and  corporations.  Coal  and 
other  combustibles  belong  to  owners  of  the  soil,  also  quarries  and 
any  other  mineral  substances  occurring  in  the  surface  soil  or 
lying  above  or  upon  the  bed  rock. 

Anyone  who  desires  to  inaugurate  a  search  for  metals  on  prop- 
erty owned  by  another  may  secure  permission  to  do  so  by  being 
the  first  applicant  to  the  authorities  for  the  privilege.  The 
maximum  size  of  tract  that  will  be  allowed  for  the  purpose  meas- 
ures about  100  acres,  and  the  term  permitted  is  one  year,  with  an 
extension  of  six  months  for  good  cause  shown.  Any  number  of 
such  prospecting  areas  will  be  allotted  to  an  applicant,  so  long  as 
each  one  is  separated  from  any  of  the  others  by  a  distance  of  not 
less  than  about  6000  feet.  Before  application  is  made  to  the 
authorities  for  the  permit — which  costs  only  a  nominal  sum — it  is 
customary  to  ask  the  surface  owner  for  the  right.  If  it  is  refused, 
the  authorities  will  authorize  the  work  and  its  continuance  to  the 
extent  that  they  may  deem  advisable,  so  long  as  it  promises  to 
bring  about  some  useful  result.  The  soil  owner  can  claim  indem- 
nity for  any  damage  that  may  take  place.  If  ore  is  found  and  the 
discoverer  thereof  applies  to  the  authorities  within  the  term  of 


EUROPEAN  SYSTEMS  OF  MINING  LAW  221 

his  permit,  he  will  be  given  a  working  license.  If  he  fails  to  make 
the  application  the  franchise  will  be  given  to  the  first  applicant 
thereafter  who  is  able  to  demonstrate  the  existence  of  the  ore  to 
the  authorities.  The  concession  is  not  a  perpetual  one,  but  is 
continued  from  year  to  year  as  long  as  the  Department  of  Mines 
remains  satisfied  with  the  operations  of  the  concessionaire.  No 
royalties  are  claimed  by  the  government  on  the  products  recov- 
ered, nor  rental  for  the  surface  occupied.  The  soil  owner,  how- 
ever, can  exact  a  fair  compensation  for  the  acreage  used. 

GREAT  BRITAIN 

In  the  British  Isles  the  owner  of  the  surface  is  legally  also  the 
owner  of  all  substances  vertically  under  it  indefinitely,  except  as 
to  gold  and  silver,  which  are  nominally  the  property  of  the 
Crown,  though  this  right  is  no  longer  insisted  upon.  All  other 
metals  and  minerals  may  be  sold,  leased,  or  otherwise  conveyed  at 
the  will  of  the  owner  by  the  ordinary  documents  of  conveyance. 
There  is  therefore  no  mining  law  in  the  meaning  of  the  term 
elsewhere,  and  the  State  has  nothing  to  do  with  the  mining 
industry  except  in  the  matter  of  settling  controversies  between 
owners,  or  in  providing  for  such  easements  as  are  necessary  for 
rights  of  way  for  railroads,  vehicle  roads,  and  canals.  Mines  are 
subjected  only  to  the  usual  land  and  income  taxes,  even  in  the 
c"ase  of  the  few  and  unimportant  gold  and  silver  producers  that 
have,  in  recent  years,  been  discovered  and  operated. 

No  legislation  whatever  relating  to  the  industry  occurred  until 
the  year  1850,  and  this  had  to  do  only  with  the  contractual  rela- 
tions between  owners  and  leasers  of  mines,  providing  measures 
of  arbitration  in  case  of  disputes.  Subsequently,  in  1872,  1887, 
and  1911  laws  of  a  police  and  sanitary  nature  were  enacted. 

The  tin  mines  of  Cornwall  and  Devonshire,  the  coal  and  iron 
mines  of  Gloucestershire,  and  the  lead  mines  of  Derbyshire  are 
operated  today  under  very  ancient  customs,  not  very  different 
from  those  that  were  in  force  in  Germany  and  other  parts  of  the 
continent  during  the  twelfth  and  thirteenth  centuries.  In  Corn- 


INTERNATIONAL  MINING  LAW 

wall  and  Devon  an  institution  called  the  Stannary  Court,1  the 
origin  of  which  is  lost  in  antiquity,  exercised  a  limited  degree 
of  control  between  surface  owners  and  lessees,  the  principal 
effect  of  which  is  to  compel  the  former  either  to  work  the 
mines  themselves,  or  to  allow  others  to  do  so  upon  the  payment 
of  a  reasonable  rent  or  royalty.  In  Derbyshire  there  still  exists 
a  somewhat  similar  organization,  by  the  acts  and  decisions  of 
which  the  very  ancient  right  of  following  the  veins  of  the  region 
on  their  dip  outside  of  surface  side  lines,  in  accordance  with  the 
principles  in  force  in  central  Europe  during  and  before  the  fif- 
teenth and  sixteenth  centuries,  has  been  preserved  to  the  locality. 

ITALY 

There  are  four  varieties  of  mining  legislation  in  effect  in  this 
kingdom.  Although  in  fundamentals  they  are  much  alike,  yet 
the  differences  are  such  as  to  make  it  necessary  to  consider  each 
law  by  itself. 

(Law  of  August  9th,  1808,  governing  the  industry  in  the  states  of  Modena 

and  Reggio) 

Anyone  may  carry  on  prospecting  work  at  any  one  place  and 
on  any  unused  land,  regardless  of  its  ownership,  for  a  continuous 
period  not  to  exceed  six  months,  at  the  end  of  which  term  if  it  is 
desired  to  continue  exploration  a  defined  area  must  be  applied 
for.  This  will  be  allowed  by  the  authorities  if,  after  formal  inves- 
tigation, it  seems  to  them  advisable  to  do  so.  In  deciding  this 
point,  if  the  application  is  for  a  new  ore  body  in  a  mine  at  one 
time  worked  and  then  abandoned,  the  right  to  reopen  and  operate 
is  first  offered  to  the  soil  owner,  who  has  three  months  in  which  to 
consider  the  proposition.  If  he  fails  to  accept,  the  property  is 
turned  over  to  the  applicant  who  has  been  prospecting  it.  If  he 
accepts,  he  is  under  legal  obligations  to  compensate  the  discoverer 
in  a  manner  and  to  an  extent  satisfactory  to  the  authorities.  If 
the  application  is  for  an  entirely  new  ore  occurrence  the  grant  will 

1  Abolished  1896  and  jurisdiction  given  to  County  Courts. 


EUROPEAN  SYSTEMS  OF  MINING  LAW  223 

be  issued  to  the  first  discoverer  of  it,  if  he  is  able  to  satisfy  the 
authorities  that  he  can  command  the  means  to  open  and  operate 
it  properly.  If  he  cannot,  it  goes  to  the  next  applicant,  who  must 
indemnify  the  discoverer  to  a  reasonable  extent  (in  the  opinion 
of  the  authorities)  for  the  expenses  incurred  and  for  the  fact  of  the 
discovery. 

The  maximum  term  of  a  mining  grant  is  50  years.  Its  area 
and  conditions  are  matters  of  negotiation  between  the  applicant 
and  the  government.  The  papers  evidencing  the  concession 
must  state  the  substances  that  are  expected  to  be  recovered,  and 
all  matters  of  rental  to  the  soil  owner  or  royalty  to  the  State  are 
based  upon  these  statements.  If  other  desirable  substances  are 
found  and  recovered,  the  concessionaire  has  a  preferential  right 
to  them  if  he  accepts  the  terms  which  the  authorities  set  in  con- 
sideration of  the  additional  grant. 

(Law  of  November  20th,   1859,  governing  the  industry  in  the  States  of 
Piedmont,  Sardinia,  and  Lombardy) 

No  prospecting  for  mineral  substances  is  allowable,  even  by  a 
surface  owner  on  his  own  ground,  without  written  governmental 
permit.  But  such  a  document,  covering  exclusive  prospecting 
rights  on  a  defined  area  (size  and  conditions  of  same  being  mat- 
ters of  negotiation),  will  be  granted  to  the  first  applicant  whose 
ability  to  conduct  operations  is  satisfactory  to  the  authorities. 
If  the  explorations  result  in  the  discovery  of  a  new  ore  body  or 
occurrence,  the  Minister  of  Public  Works  makes  announcement  of 
the  fact  by  advertisement,  which  has  the  effect  of  giving  to  the  dis- 
coverer the  preferential  right  to  claim  a  mining  grant  of  the  prem- 
ises if  the  claim  is  made  within  six  months  of  the  date  of  the 
advertisement.  In  case  of  failure  to  do  so  the  government  is 
empowered  to  confer  the  grant  on  the  first  applicant  thereafter 
who  will  accept  it  under  the  conditions  of  paying  a  proper  con- 
sideration to  the  discoverer.  The  amount  of  this  payment  is 
arranged  between  the  parties  in  interest  if  possible,  otherwise  it  is 
determined  by  the  Department  of  Mines.  Whoever  obtains  the 
grant  must  first  satisfy  the  authorities  that  he  can  command  the 


224  INTERNATIONAL  MINING  LAW 

capital  to  develop  and  operate  properly,  and  in  accordance  with 
good  mining  practice. 

This  law  is  also  known  as  the  Royal  Mining  Law,  and  applies 
in  all  parts  of  Italy  wherever  there  is  no  State  law,  as  well  as  in 
Piedmont,  Sardinia,  and  Lombardy. 

(Law  of  May  3rd,  1847,  governing  the  industry  only  in  Lucca) 

This  law  is  in  all  essentials  similar  to  that  of  Piedmont,  Sar- 
dinia, and  Lombardy,  except  that  if  the  actual  discoverer  cannot 
qualify  to  the  satisfaction  of  the  authorities,  then  the  owner  of 
the  surface  has  the  next  right  to  claim  the  premises.  In  the  event 
of  his  failure  to  do  so,  or  to  qualify,  the  right  passes  to  the  first 
outside  applicant  who  can  comply  with  the  conditions  established 
by  the  authorities,  which  includes  proper  compensation  to  the 
discoverer. 

(Law  of  June  21st,  1852,  governing  the  industry  only  in  Parma) 

In  this  state  the  quarries  as  well  as  the  underground  mines 
are  held  to  be  the  property  of  the  Nation.  No  license  is  required 
to  prospect,  but  only  a  very  limited  amount  of  exploratory 
work  is  allowed  without  special  permission  from  the  government, 
and  when  a  discovery  is  made  the  authorities  must  be  advised 
of  the  fact  within  15  days.  The  locality  is  then  subjected  to 
inspection  by  experts,  whose  report  determines  whether  the 
property  shall  be  taken  over  for  operation  by  the  State  or  be 
conceded  to  others.  In  the  first  case  the  discoverer  is  indemni- 
fied for  his  work,  and  suitably  rewarded  for  his  discovery.  Under 
the  other  decision  the  mining  right  will  be  awarded  to  the  dis- 
coverer, if  he  can  qualify  to  the  satisfaction  of  the  authorities; 
if  not,  it  is  next  offered  to  the  surface  owner.  If  he  declines, 
or  is  unable  to  qualify,  the  government  passes  it  to  the  first 
satisfactory  applicant.  Whoever  secures  the  grant  must  care 
properly  for  the  interests  of  the  discoverer.  The  grant  when 
given  is  for  an  agreed  area  and  time,  and  is  renewable  according 
to  its  terms,  but  cannot  be  made  perpetual.  It  conveys  the 
right  to  recover  and  realize  upon  all  mineral  substances  found 


EUROPEAN  SYSTEMS  OF  MINING  LAW  225 

vertically  under  its  surface  area.     No  rental  can  be  collected 
from  the  grantee  by  the  soil  owner. 

THE  TWO  SICILIES 

In  these  States  the  surface  owner  is  also  the  exclusive  proprie- 
tor of  the  undersoil.  He  may  explore  for  and  work  mines  on  his 
own  ground  without  any  obligation  to  the  government.  In 
case  a  mineral  discovery  is  made  on  his  premises  by  anyone  else, 
he  may  take  advantage  of  it  himself  after  giving  reasonable 
compensation  and  reward  to  the  discoverer,  If  he  does  not  do 
so  within  a  given  time  after  notification  from  the  latter  the  State 
has  the  right  to  offer  the  property  in  one  or  more  tracts,  first 
to  the  discoverer,  and  next  to  the  general  public.  In  each  case 
the  recipient  must  pay  to  the  soil  owner  an  annual  rental  to  be 
determined  by  the  government.  If  the  discoverer  is  not  able 
to  qualify  financially,  the  opportunity  passes  to  the  first  applicant 
who  can  satisfy  the  conditions  set  by  the  authorities,  which 
include  a  set  compensation  to  the  discoverer.  This  may,  at  the 
option  of  the  latter,  take  the  form  of  a  lump  sum,  or  of  an  annual 
payment  for  a  set  term,  or  of  a  percentage  of  the  gross  or  net 
profits  of  operation.  The  term  and  size  of  the  grant  and  all 
other  details  are  matters  of  negotiation  between  the  authorities 
and  the  concessionaire. 

NORWAY 

(Law  of  July  14th,  1842,  with  amendments  to  date  of  January  1st,  1918) 

The  State  claims  the  exclusive  ownership  and  control  of 
minerals  of  all  kinds  occurring  on  or  in  government  land,  and  of 
all  found  underneath  the  surface  soil  in  rock  in  place  on  privately 
owned  property.  But  metalliferous  alluvial  (placer  deposits), 
and  all  other  minerals  found  above  the  bed  rock  and  in  the  surface 
soil  of  alienated  land  belong  to  the  owner  of  the  surface. 

Prospecting  is  not  free.  A  permit  is  obtainable  at  any  time 
without  cost,  good  for  one  year,  on  application  at  the  office  of 
the  local  authority,  but  applies  only  in  the  district  under  the 
control  of  that  officer.  It  permits  search  by  excavation  on  public 


226  INTERNATIONAL  MINING  LAW 

or  private  land  except  in  the  public  roads,  parks  or  other  like 
reservations.  Explosives  may  be  employed,  but  special  regula- 
tions are  prescribed  for  their  use  within  400  feet  of  a  building. 
When  the-  operations  are  to  be  carried  on  upon  alienated  land  an 
additional  permit  must  be  obtained  from  the  authorities,  to  be 
presented  to  the  owner,  and  security  given  to  the  satisfaction  of 
the  local  chief  official  for  all  damages  that  may  result.  All 
excavations  must  be  fenced,  and  if  abandoned  must  either  be 
filled  up  or  surrounded  by  a  substantial  stone  wall. 

To  secure  prior  rights  to  a  discovery  the  discoverer  must  give 
written  notice  in  duplicate  to  the  authorities  within  18  months 
from  date  of  discovery,  and  furnish  sample  of  the  mineral  found. 
The  surface  owner  has  a  right  to  claim  a  one-tenth  interest  in 
the  adventure,  and  can  demand  that  10%  of  all  material  raised 
be  left  on  the  premises  until  an  agreement  has  been  made  with 
him.  But  this  agreement  must  be  consummated  and  recorded 
within  six  months  after  production  begins.  If  not,  the  surface 
owner  has  the  right  within  the  following  three  months  to  dispose 
of  his  10%  interest  at  public  auction  if  he  can. 

The  size  of  claim  for  well  defined  lodes  or  veins  is  900  feet  in 
length  by  42  feet  in  width;  for  all  other  kinds  of  deposits,  a  tract 
1500  feet  square.  No  royalties  or  ground  rent  are  demanded  by 
the  government,  or  allowed  to  be  claimed  by  the  surface  owner. 
If  the  claim  is  located  on  government  land  full  surface  rights  go 
with  the  underground  franchise.  If  on  private  land  the  miner 
can  claim  such  surface  area  as  he  may  reasonably  need  for 
economical  operation,  but  must  buy  or  lease  it  from  the  surface 
owner  on  terms  set  by  the  authorities.  Before  any  ore  can  be 
removed  and  realized  upon,  the  claim  must  be  surveyed  by  a 
government  engineer  at  the  expense  of  the  claimant,  monu- 
mented  at  the  places  indicated  by  the  engineer,  and  registered. 

PORTUGAL 

(Law   of  February  26th,  1892,  with  amendments  to  January  1st,   1917) 

The  State  claims  the  exclusive  ownership  of  all  deposits  of 
ores  (in  rock  in  place)  of  the  metals,  combustibles,  and  asphalts 


EUROPEAN  SYSTEMS  OF  MINING  LAW  227 

(except  peat),  salines,  graphite,  and  phosphates,  wherever 
occurring  within  its  borders,  and  will  grant  rights  to  work  the 
same  under  the  provisions  of  the  law.  Also  it  claims  the  sole 
property  of  all  mineral  springs,  but  the  privilege  of  utilizing 
them  may  be  obtained  under  a  special  law.  Placer  deposits 
of  all  kinds  occurring  on  the  public  domain,  so  long  as  they 
exist  in  the  surface  soil  only,  may  be  operated  by  anyone,  without 
the  necessity  of  applying  for  a  government  permit  or  concession, 
if  the  methods  of  operation  are  of  a  primitive  nature.  But  if  it 
is  desired  to  install  dredging  or  hydraulic  plants  or  any  other 
mechanical  devices,  a  permit  must  be  applied  for  and  a  con- 
cession secured.  Bog  iron  ore  may  also  be  freely  worked  by  any- 
one, but  if  the  ore  is  to  be  reduced  to  metal  a  concession  is 
necessary.  Quarries  and  placer  deposits  on  alienated  land  belong 
to  the  surface  owner,  and  may  be  worked  by  him  or  with  his 
permission  without  concession. 

Materials  of  general  public  use  and  need  like  brick  and  pottery 
clay,  when  on  alienated  land,  if  not  operated  by  the  soil  owner  or 
with  his  consent,  may  be  commandeered  by  the  government 
and  offered  publicly  for  concession.  Peat  belongs  to  the  soil 
owner,  but  can  be  worked  by  him  only  by  virtue  of  a  government 
license.  No  metallurgical  works  of  any  kind  may  be  installed 
without  government  knowledge  and  permission. 

Prospecting  is  free  to  natives  and  aliens  on  both  the  public 
domain  and  privately  owned  land,  so  long  as  it  consists  merely  of 
surface  inspection  and  the  digging  of  shallow  pits.  When  a 
discovery  is  made  the  discoverer  must  at  once  notify  the  chief 
authority  of  the  district  in  which  it  lies,  giving  him  a  sample  of 
the  ore  found,  together  with  a  full  and  accurate  description  of  its 
situation,  and  the  name  and  address  of  the  surface  owner,  if  any. 
If  on  examination  by  government  mining  engineers  the  state- 
ments are  in  the  main  verified,  the  applicant  is  given  a  permit 
granting  exclusive  prospecting  rights  on  a  tract  of  land  in  the 
shape  of  a  circle  with  the  place  of  discovery  at  its  center.  In 
the  case  of  metals  and  phosphates  the  radius  of  this  circle  is  560 
meters,  and  for  all  other  substances  707  meters.  This  permit 


228  INTERNATIONAL  MINING  LAW 

is  transferable  by  endorsement  and  acknowledgment  of  the 
signature  before  a  notary.  It  is  good  for  12  months  and  is  not 
renewable.  It  confers  the  right  to  explore  to  the  depth  of  20 
meters  by  a  shaft,  or  40  meters  by  a  drill  hole,  and  by  drift  or 
levels  up  to  25  meters  of  length,  or  by  surface  trenches  not  over 
five  meters  deep.  But  the  holder  is  not  allowed  to  remove  or 
sell  any  ore  found.  During  its  term  he  must  apply  for  a  defined 
area  within  his  circle  or  forfeit  his  discovery  right.  No  excava- 
ting is  allowed  within  30  meters  of  a  building,  railway,  public 
road,  canal,  or  public  fountain,  nor  within  1400  meters  of  forti- 
fications, nor  under  orchards,  gardens,  or  irrigated  lands.  But 
it  is  allowed  on  other  cultivated  lands  when  proper  security  is 
given  for  possible  damages. 

The  preliminary  exploration  work  having  been  accomplished, 
and  the  results  proving  satisfactory  to  the  explorer,  he  applies 
to  the  authorities  for  a  document  called  a  "  discovery  right," 
accompanying  the  application  with  a  deposit  of  130,000  reis1 
to  cover  the  costs  of  title  investigation,  survey,  advertising,  etc., 
all  of  which  are  done  under  the  supervision  of  the  government. 
The  minimum  area  allowable  for  a  claim  is  10  hectares,  and  the 
maximum  50  hectares  in  the  case  of  a  metal  or  phosphates,  and 
100  hectares  for  all  other  substances.  In  shape  the  claim  may  be 
a  circle,  a  square,  or  a  rectangle,  at  the  option  of  the  claimant, 
and  under  certain  conditions  a  polygon.  The  place  of  discovery 
must  be  at  its  center,  or  as  nearly  so  as  possible.  Publication 
during  70  days  in  the  Official  Gazette  and  posting  during  eight 
days  in  the  office  of  the  chief  of  the  district  follows,  and  during 
this  period  all  objections  to  the  claim  must  be  filed.  If  the 
proceedings  are  completed  without  the  presentation  of  any  ad- 
verses,  or  when  such  as  may  be  presented  are  successfully  con- 
troverted in  open  court,  the  applicant  is  given  a  "Certificate  of 
Discovery,"  upon  which  the  authorities  set  a  price,  based  not 
only  upon  the  work  done  by  the  discoverer,  but  upon  the 

Approximately  2000  Portuguese  reis  are  the  equivalent  of  $1.00  U.  S. 
gold.  Hence  130,000  reis  correspond  to  $65;  40,000  to  $20;  500  to  25  cents 
and  300  to  15  cents. 


EUROPEAN  SYSTEMS  OF  MINING  LAW  229 

importance  of  the  discovery  in  the  opinion  of  the  government 
engineers. 

At  any  time  during  the  following  six  months  it  is  the  right  of 
the  holder  of  such  a  document  to  apply  to  the  authorities  for  a 
concession,  which  must  be  granted  to  him  if  he  can  comply  with 
the  conditions  required  in  such  grants.  These,  in  the  main,  are 
to  prove  the  ability  to  guarantee  to  the  government  that  (the 
property  shall  be  developed  and  operated  with  ample  capital  and 
skill.  If  the  discoverer  or  his  assigns  cannot  do  this  the  claim  is 
offered  to  the  general  public,  and  disposed  of  to  that  bidder  who 
makes  the  most  satisfactory  tender  for  it.  This  party,  in  taking 
possession,  is  required  to  pay  to  the  holder  of  the  discovery  cer- 
tificate the  price  set  by  the  government,  in  cash,  or  to  liquidate 
the  claim  in  some  other  way. 

The  concession,  when  granted,  is  perpetual,  so  long  as  the 
concessionaire  pays  the  direct  and  proportional  taxes  promptly, 
and  faithfully  observes  all  the  other  conditions  specified  in  it. 
These  include  indemnity  to  the  surface  owner  (if  it  is  on  private 
land)  for  all  damages  resulting  from  operations,  and  keeping  on 
deposit  with  the  government  the  sum  of  40,000  reis  as  security 
for  any  future  injury.  Active  work  must  begin  within  three 
months  of  the  date  of  the  concession,  and  thereafter  be  con- 
tinuous to  an  extent  satisfactory  to  the  authorities.  A  conces- 
sion conveys  the  right  to  operate  only  for  that  kind  or  class  of 
substance  that  has  been  specifically  described  in  the  "certifi- 
cate of  discovery"  upon  which  it  is  based,  together  with  such 
others  as  may  be  so  intimately  combined  with  it  as  to  render 
their  simultaneous  extraction  an  economic  necessity.  No 
laborers  under  14  years  of  age  may  be  employed  in  underground 
work. 

A  concession  cannot  be  sold,  either  in  whole  or  in  part,  without 
the  written  consent  of  the  Department  of  Mines. 

Government  taxes  are  as  follows:  a  fixed  tax  of  500  reis  per 
hectare  per  annum  for  metals  and  phosphates,  and  300  reis  for  all 
other  substances;  a  proportional  tax  of  2%  of  the  gross  value  of 
the  product  at  the  mine,  excepting  in  the  case  of  pyrite  and  man- 


230  INTERNATIONAL  MINING  LAW 


ganese  oxide,  when  the  tax  is  2J^%.     But  iron  ore,  if  reduced 
to  the  metal  in  the  country,  is  free  from  this  tax. 

Concessionaires  can  claim  the  exclusive  usage  of  any  part  or 
the  whole  of  the  surface  within  the  lines  of  their  concession,  but 
must  pay  to  the  surface  owner  (if  any)  a  rental  for  the  area  used, 
and  a  royalty  equal  to  one-third  of  the  proportional  tax  levied 
by  the  government  on  the  output.  The  amount  of  the  rental  is 
arranged  amicably  if  possible  between  the  interested  parties, 
but  if  that  proves  to  be  impossible  the  authorities  will  set  its 
amount.  The  concession,  as  delimited  on  the  surface  by  monu- 
ments set  by  the  government  engineer,  is  bounded  under  the 
surface  by  vertical  planes  passing  through  the  surface  lines,  no 
extralateral  rights  of  any  kind  being  allowed. 

RUSSIA 

In  this  great  country,  excepting  in  Finland  and  Russian  Poland, 
the  fundamental  principle  of  the  mining  law  is  the  doctrine  that 
the  owner  of  the  surface  is  also  the  owner  of  all  substances 
vertically  under  it.  But  the  State,  which  is  a  very  large  owner 
of  land,  offers  the  enjoyment  of  underground  mining  privileges 
to  all  who  apply  for  it,  and  on  generally  favorable  terms.  In 
Finland  the  mining  regulations  are  very  similar  in  detail  to 
those  of  Sweden,  and  in  Russian  Poland  to  those  of  the  kingdom 
of  Prussia. 

In  the  balance  of  Russia  (including  Siberia)  surface  owners 
may  freely  explore  for  minerals  on  their  own  land,  under  no 
obligations  to  the  government  other  than  that  of  giving  notice 
of  the  discovery  of  new  ore  bodies  and  occurrences,  if  they  are 
of  importance  enough  to  warrant  development.  With  the  same 
obligations,  owners  can  sell  or  lease  their  underground  rights. 

On  State  lands  no  license  is  required  by  one  who  simply  inspects 
the  surface  for  indications  of  mineral  and  does  no  digging,  except- 
ing in  the  case  of  those  who  are  exploring  for  gold  and  amber, 
where  a  permit  is  strictly  required.  Its  cost  is  nominal,  but 
it  is  given  only  to  individuals  who  are  certified  to  the  authorities 
as  reliable.  In  all  other  cases,  as  soon  as  the  prospector  desires 


EUROPEAN  SYSTEMS  OF  MINING  LAW  231 

to  inaugurate  development  work  of  any  serious  extent,  and  wishes 
exclusive  right  at  the  place  selected,  he  may  obtain  the  same  by 
application  to  the  authorities  for  a  definite  area  and  for  a  definite 
time.  These  are  usually  granted,  and  under  reasonably  fair  con- 
ditions, and  the  franchise  is  assignable. 

The  holder  or  assignee  of  such  a  prospecting  tract  has  the 
exclusive  right,  during  its  term,  to  demand  from  the  government 
a  concession  for  such  part — or  all —  of  it,  as  he  may  desire.  When 
received,  it  takes  the  form  of  a  perpetual  grant,  depending  for  its 
maintenance  on  reasonably  continuous  and  energetic  exploration 
work,  in  default  of  which  the  State  may  at  any  time  resume  pos- 
session. It  carries  the  right  to  the  use  of  the  surface  for  all 
legitimate  mining  purposes,  except  for  the  establishment  of 
works  of  all  kind  for  the  treatment  of  the  ore.  When  space  for 
such  installation  is  needed  it  must  be  purchased,  and  on  such 
tracts  only  surface  rights  are  given. 

SPAIN 

(Law  of  July  6th,  1859,  with  amendments  to  date  of  January  1st,  1917) 

For  the  purposes  of  the  law  all  mineral  substances  are  divided 
into  three  classes,  as  follows: 

Class  1. — Brick  clay,  slate,  grindstones,  basalt,  limestone, 
gypsum,  sand,  marl,  and  in  general,  all  substances  that  are 
quarried.  These,  when  on  public  land,  are  open  to  appropria- 
tion by  anyone,  but  when  on  privately  owned  land  belong  to 
the  soil  owner,  and  may  not  be  taken  from  him.  But,  when  such 
deposits  are  worked  by  the  soil  owner,  they  must  be  operated  in 
accordance  with  the  provisions  and  regulations  of  the  law  as 
regards  the  safety  of  employees  and  matters  of  sanitation. 

Class  2. — Metalliferous  alluvials,  bog  iron,  emery,  ochres, 
abandoned  mine  and  slag  dumps,  peat,  pyrites,  alum,  magnesite, 
fuller's  earth,  phosphates,  baryta,  fluorspar,  soapstone,  kaolin, 
asbestos,  pumice  and  potter's  clay.  These,  when  on  the  public 
domain,  are  open  to  appropriation,  but  when  on  alienated  land 
are  obtainable  only  through  the  permission  of  the  Governor  of 
the  Province  in  which  they  lie.  In  the  case  of  potter's  clay,  if 

16 


232  INTERNATIONAL  MINING  LAW 

the  owner  refuses  to  produce  it,  the  Government  reserves  the 
right  to  expropriate  and  lease  the  deposit. 

Class  3. — Metalliferous  deposits  of  all  kinds  existing  in  rock  in 
place.  Also  coal,  asphalt,  petroleum  and  natural  gas,  graphite, 
salines,  copperas,  sulphur,  and  precious  stones.  These  belong 
to  the  Nation  and  cannot  be  sold,  but  are  open  to  appropriation 
under  lease  by  anyone,  whether  situated  on  the  public  domain 
or  upon  alienated  land. 

When  any  doubt  exists  as  to  the  class  to  which  a  mineral  sub- 
stance should  belong,  the  question  is  decided  by  the  Governor  of 
the  Province  under  the  advice  of  the  Bureau  of  Mines. 

Prospecting  is  free  except  within  40  meters  of  public  buildings, 
highways,  bridges,  ditches,  fountains  and  reservoirs,  or  within 
20  meters  of  a  public  railroad,  or  15  meters  of  a  private  railroad, 
or  in  the  vicinity  of  public  baths  and  mineral  springs,  or  within 
1400  meters  of  fortifications  or  other  government  military  reserve. 

Prospecting  excavations  may  not  exceed  a  length  and  width  of 
two  meters  and  a  depth  of  one  meter,  and  when  they  reveal 
nothing,  and  are  to  be  abandoned  by  the  digger  thereof,  they 
must  be  filled  up. 

Gravel  deposits  carrying  gold,  tinstone,  precious  stones,  or 
other  valuable  minerals  or  metals,  may  be  worked  by  anyone, 
without  the  formality  of  filing  claims,  so  long  as  the  operations 
are  of  a  primitive  nature,  and  are  conducted  by  working  indi- 
viduals. The  same  applies  to  ochres,  so  long  as  the  mineral  is 
not  smelted. 

Prospectors  may  secure  exclusive  rights  to  test  selected  areas 
of  reasonable  size  by  deep  shafts  or  boreholes,  by  special  applica- 
tion to  the  government.  The  terms  and  conditions  of  such 
grants  are  wholly  a  matter  of  negotiation  with  the  authorities. 
Before  abandoning  a  grant  of  this  kind  the  government  must 
be  notified  of  the  intent  at  least  five  days  before  the  act. 

The  following  areas  are  not  open  to  prospecting:  the  mercury 
district  of  Almaden,  the  copper  district  of  Rio  Tinto,  the  lead 
districts  of  Linares  and  Falset,  the  sulphur  districts  of  Hellin 
and  Benamaurel,  the  graphite  district  of  Marbella,  the  iron 


EUROPEAN  SYSTEMS  OF  MINING  LAW  233 

districts  of  Asturia  and  Nivarre,  the  vicinity  of  Trubia  in  the 
province  of  Oviedo,  and  all  salt  producing  districts  at  present 
in  operation. 

The  unit  lode  mining  claim,  which  applies  to  all  mineral 
deposits  of  that  nature,  is  a  rectangle  measuring  300  by  200 
meters,  laid  out  on  a  horizontal  plane  and  bounded  in  depth  by 
vertical  planes  passing  through  its  side  lines.  No  extralateral 
rights  are  allowed.  Such  claims,  except  when  located  on  the 
public  domain,  do  not  carry  surface  rights.  But  when  located 
and  approved  on  private  land,  the  claimant  acquires  a  natural 
preferential  right  to  such  parts  of  its  surface  as  may  be  required 
for  all  proper  mining  operations,  but  must  arrange  with  the  sur- 
face owner  for  what  is  needed.  Any  number  of  these  may  be 
acquired  by  individuals  or  companies,  but  the  former  may  apply 
for  only  two  and  the  latter  for  only  four  in  one  formal  application. 

The  unit  claim  for  iron,  coal,  peat,  asphalt,  sulphur,  rock  salt, 
and  all  substances  found  in  rock  in  place  but  not  in  veins,  is 
500  by  300  meters. 

The  unit  alluvial  claim,  applicable  to  all  mineral  deposits  in 
the  surface  soil  and  above  the  bed  rock,  is  200  by  300  meters, 
taken  in  any  desired  shape  not  smaller  than  a  series  of  adjoining 
squares  each  of  which  measures  20  meters  on  the  sides.  In 
the  case  of  this  class  of  claims  an  individual  may  unite  four  and 
a  company  eight  in  one  application. 

A  discovery  of  mineral  is  a  necessary  prerequisite  to  the  filing 
of  an  application  for  a  claim  of  any  kind.  No  claim  may  be  less 
than  four  hectares  in  area. 

The  procedure  for  acquiring  mining  property  is  practically  the 
same  for  all  classes  of  claims.  A  discovery  having  been  made 
the  discoverer  decides  upon  the  area  he  wishes,  and  plants  pro- 
visional stakes  or  monuments,  noting  the  position  of  each  with 
respect  to  any  landmark  in  the  vicinity  or  any  other  occupied 
ground.  Then,  either  personally  or  by  a  duly  authorized  agent, 
he  makes  application  for  the  ground  directly  to  the  Governor 
of  the  Province  in  which  it  lies.  The  government  provides 
blank  forms  for  all  classes  of  applications,  and  other  necessary 


234  INTERNATIONAL  MINING  LAW 

documents  connected  therewith.  These  are  printed  upon 
stamped  paper,  the  stamps  being  of  various  denominations,  and 
the  indicated  value  of  those  used  by  the  applicant  must  be  paid 
for  by  him.  They  call  for  detailed  descriptions  of  the  position, 
extent  and  surroundings  of  the  area  desired,  all  of  which  informa- 
tion the  applicant  must  furnish.  The  blank  having  been  filled 
out,  it  is  signed  by  the  applicant  and  witnessed,  and  is  started 
upon  its  official  journey  through  the  government  offices  having 
such  matters  in  charge.  If  the  ground  desired  is  on  the  public 
domain — of  which  naturally  there  is  little  left — a  conclusion  is 
reached  within  a  month  or  two.  But  if  it  is  on  private  land,  as 
is  generally  the  case,  the  journey  takes  from  three  to  six  months, 
according  generally  to  the  obstacles  presented  by  the  surface 
owner  to  the  grant.  Or,  the  latter  may  decide  to  work  the  ground 
himself,  for  which  the  law  gives  him  a  preferential  right  within  a 
certain  term. 

A  fee  of  150  pesetas  (about  $45)  must  accompany  each  applica- 
tion, and  an  additional  amount  if  there  are  several  applications, 
and  if  their  combined  area  is  in  excess  of  20  claims  of  any  one 
class.  The  total  must  be  at  least  5%  of  the  first  year's  rental, 
the  other  95%  being  due  and  payable  when  the  grant  is  allowed. 

While  the  application  is  under  consideratior  and  being  ad- 
vertised, no  work  can  be  done  upon  the  ground,  and  when  it  is 
granted  it  gives  the  right  to  work  for  one  class  of  mineral  only. 
If  the  application  is  allowed  the  ground  must  then  be  accurately 
surveyed  and  properly  monumented  by  a  government  engineer, 
whose  charges  are  moderate,  and  these  landmarks  must  be  kept 
in  good  repair  by  the  claimant.  If,  during  the  course  of  opera- 
tions, minerals  are  encountered  other  than  the  one  for  which 
mining  privilege  was  asked  in  the  application,  the  authorities 
must  at  once  be  advised  of  the  incident  so  that  the  rate  of  royalty 
may  be  adjusted. 

Statistical  reports  of  operations  must  be  furnished  to  govern- 
ment officials  whenever  called  for. 

Immediately  upon  the  issuing  of  a  mineral  grant  the  document 
is  registered,  and  the  claimant  is  put  in  physical  possession  by 


EUROPEAN  SYSTEMS  OF  MINING  LAW  235 

the  local  alcalde.     Thereafter  conveyancing  rights  are  complete, 
except  for  reserved  minerals. 

Everyone  engaged  in  mining  must  have  a  representative  in  the 
capital  of  the  Province  in  which  the  property  lies,  unless  he  is 
himself  a  resident  of  the  capital. 

The  annual  rental  on  an  ordinary  quartz  or  alluvial  claim  is  30 
crowns  (about  $15).  For  a  coal  claim  it  is  20  crowns;  for  slag 
heaps  and  old  dumps  it  is  40  crowns  per  40,000  square  meters 
of  surface  in  the  claim;  for  prospecting  claims,  10  crowns  per 
claim  of  60,000  square  meters.  No  rental  will  be  charged  on 
iron  claims  until  the  year  1925. 

The  government  reserves  the  right  to  establish  drainage  areas, 
and  to  compel  all  claimholders  therein  to  contribute  to  the  cost 
of  drainage  in  proportion  to  the  area  of  their  ground.  All 
mines  must  have  at  least  two  exits,  and  all  shafts  substantial 
ladder  ways. 

No  fee  simple  title  is  given  to  any  mineral  land.  The  right  of 
possession  and  usage,  when  an  application  is  allowed,  depends 
upon  the  payment  of  the  annual  rental  and  also  upon  the  per- 
formance in  good  faith  of  at  least  732  shifts  of  labor  per  unit 
claim  per  year,  being  the  equivalent  of  four  workmen  for  half 
the  days  of  the  year.  In  a  group  of  claims  all  of  this  may  be 
done  at  one  or  more  points,  at  the  option  of  the  claimholder. 

When  it  is  desired  to  abandon  a  registered  mining  property 
30  days'  notice  must  be  given  to  the  authorities  of  the  intent, 
and  the  claimant  is  held  responsible  until  all  debts  are  paid. 

Individuals  or  companies  buying  claims  must,  within  20  days 
from  date  of  transfer,  send  a  certified  copy  of  the  document  to  the 
authorities,  together  with  the  prescribed  transfer  fee,  which 
varies  with  the  consideration  and  the  nature  of  the  property  sold. 

Export  duties  on  metals  or  minerals  may  not  be  in  excess  of 
3%  ad  valorem. 

Tunnel  rights  for  drainage,  exploration,  or  working  purposes 
are  obtainable  under  reasonable  conditions,  with  rights  of  way 
through  claims  along  their  line,  and  working  rights  on  new  veins 
discovered  in  driving  them. 


236  INTERNATIONAL  MINING  LAW 

A  royalty  of  3%  or  less  of  the  gross  value  of  all  minerals  or 
metals  produced  and  disposed  of  is  payable  by  all  producing 
mines.  This  tax  is  collected  quarterly. 

SWEDEN 

(Law  of  May  16th,  1884) 

The  State  claims  the  exclusive  ownership  of  all  undersoil 
substances,  and  allows  free  prospecting  everywhere  to  the  extent, 
however,  only  of  surface  inspection,  and  the  taking  of  assay 
samples.  If  it  is  desired  to  make  excavations,  a  circular  area 
with  a  diameter  of  about  600  feet  must  be  selected,  and  appli- 
cation made  for  a  digging  permit  thereon,  which  will  be  granted 
to  the  first  applicant.  If  more  than  one  application  is  made 
simultaneously  for  the  same  area,  the  permit  is  given  to  the  one 
who  can  prove  that  he  was  the  first  discoverer  upon  it.  In 
default  of  this  a  collective  or  partnership  permit  is  issued.  Under 
either,  the  holder  must  begin  work  in  earnest  and  with  suitable 
appliances  within  eight  months,  and  maintain  continuous  and 
energetic  labor  thereafter  during  the  balance  of  the  term,  which 
has  a  maximum  length  of  three  years.  Before  its  expiration, 
if  payable  ore  has  been  found  and  the  concessionaire  desires 
to  continue  possession,  he  must  apply  for  a  working  permit,  and 
may  select  from  within  his  circular  prospecting  tract  the  largest 
possible  rectangular  tract  that  it  will  contain,  and  formally 
apply  for  working  privileges  thereon.  All  terms  and  conditions 
are  matters  of  negotiation  with  the  authorities. 

In  this  franchise,  when  secured,  the  soil  owner  is  allowed  by  the 
law  to  participate  (in  expenses  and  profits)  to  the  maximum  extent 
of  50%,  if  he  desires  to  do  so,  and  if  he  gives  notice  to  that  effect 
to  the  government  before  the  working  permit  is  issued. 

TURKEY 

(Law  of  May  13th,  1915,  with  amendments  to  January  1st,  1917) 

For  the  purposes  of  the  law  all  mineral  substances  are  classified 
as  follows: 


EUROPEAN  SYSTEMS  OF  MINING  LAW  237 

Class  1. — Those  found  underground  in  rock,  in  veins,  lodes, 
beds  or  masses,  or  as  replacements,  segregations,  etc. 

Class  2. — Those  found  above  the  bed  rock  in  the  surface  soil, 
as  all  alluvial  deposits  and  many  earthy  substances. 

Class  3. — Mineral  springs. 

Class  4. — Quarries,  which  may  be  operated  in  the  open. 

The  government  claims  the  exclusive  ownership  of  mineral 
substances  of  all  kinds,  whether  existing  on  the  public  domain  or 
upon  alienated  land.  The  government  will  not  sell  its  mineral 
rights,  but  will  grant  long  term  leases  called  "  concessions,"  in 
return  for  an  annual  occupation  tax  on  area  conceded,  and  a  per- 
centage of  the  net  profits.  There  are  no  such  things  as  mining 
claims.  When  a  tract  of  land  is  desired  for  mining  purposes 
application  must  be  made  direct  to  the  central  government 
through  the  Minister  of  Mines,  with  whom  the  concession  is 
arranged  on  such  terms  as  seem  to  him  advisable.  The  bargain 
thus  struck,  when  ratified  by  the  Sultan,  or  when  left  with  him 
for  consideration  and  not  adversely  acted  upon  within  six  months, 
becomes  legally  valid. 

Any  land  owner  may  freely  prospect  on  his  own  land  without 
license  or  other  formality,  but  may  not  extract  ore  or  realize  on 
the  same  without  first  applying  for  and  obtaining  a  concession. 

No  prospecting  rs  allowed  on  the  public  domain,  nor  on  alien- 
ated land — except  by  the  owner  thereof — without  a  license.  In 
addition,  the  holder  of  a  license  must  obtain  the  consent  of  the 
owner  before  he  can  prospect  on  alienated  land.  If  the  owner  is 
unreasonable  in  his  demands  appeal  may  be  taken  to  the  au- 
thorities, who  will  arrange  for  equitable  terms. 

Application  for  a  prospecting  license  must  be  made  to  the 
Governor  General  of  the  Province  in  which  the  land  lies  which 
it  is  desired  to  prospect,  who  will  immediately  allot  to  the  appli- 
cant, provisionally,  an  exclusive  area  not  to  exceed  4000  hectares 
in  area,  upon  which  he  can  go  to  work  at  once  if  he  chooses;  but 
the  authorities  require  six  months  in  which  to  consider  the 
proposition,  and  reserve  the  right  to  reject  it  within  that  term. 
If  granted,  the  applicant  must  begin  work  in  earnest  within  three 


238  INTERNATIONAL  MINING  LAW 

months  from  date  of  issue.  The  fee  is  10  shillings,  plus  all  the 
costs  connected  with  the  six  months  of  investigation,  which  are 
heavy.  The  term  of  the  permit  is  two  years,  with  the  right  of 
an  extension  for  an  additional  year,  for  good  cause.  During 
this  period  the  holder  has  the  right  to  mine  and  sell  ore,  after 
paying  the  appraised  royalties  on  the  same,  and  also  may  sell  or 
mortgage  his  franchise.  Samples  of  all  valuable  minerals  found 
must  be  sent  at  once  to  the  local  authorities. 

Within  the  term  of  the  license  (or  that  of  its  extension)  a 
concession  must  be  applied  for,  if  one  is  desired.  To  secure  it 
application  is  made  direct  to  the  Minister  of  Mines.  The 
applicant  must  give  complete  information  about  his  prospect, 
accompanied  by  maps,  samples  of  ore,  etc.,  and  must  state  the 
particular  kind  of  ore  it  is  expected  to  produce,  and  furnish  the 
Minister  with  satisfactory  evidence  that  the  mine  can  be  worked 
profitably,  and  that  he  can  command  sufficient  capital  for  proper 
equipment,  etc.  The  documents  so  compiled  go  first  to  the 
government  engineer  for  examination  and  verification.  A  lump 
sum  of  money — as  estimated  by  the  Minister  of  Mines — to  cover 
his  travelling  expenses  and  time  must  be  deposited  in  advance. 
If  the  report  of  the  Engineer  is  unfavorable  the  concession  is 
refused.  If  favorable,  publication  of  the  application  both 
locally  and  in  the  Government  Gazette  at -the  capital  follows. 
If  no  objections  are  filed  during  that  period  the  papers  finally 
go  to  the  Sultan,  who  approves  or  disapproves  as  he  sees  fit,  or 
neglects  altogether.  The  law  allows  a  period  of  six  months  for  his 
action.  If  within  that  term  he  does  not  disapprove  then  the 
Minister  of  Mines  must  execute  a  grant  in  favor  of  the  applicant. 
The  term  allowed  is  anywhere  from  40  to  99  years,  and  the 
final  fee  ranges  from  £50  to  £200,  according  to  the  estimated 
importance  of  the  concession.  The  rental  is  £1  per  hectare 
per  annum,  payable  in  advance,  and  due  thereafter  on  or  before 
March  1st  of  each  year.  In  addition,  a  royalty  on  the  net  profits 
is  demanded,  payable  as  soon  as  the  product  is  converted  into 
money.  This  may  range  in  amount  to  from  3%  to  20%,  accord- 
ing to  the  nature  and  value  of  the  mineral. 


EUROPEAN  SYSTEMS  OF  MINING  LAW  239 

Concessionaires  must  begin  work  within  one  year  from  the 
date  of  issue  of  the  grant,  and  thereafter  must  continue  work 
with  reasonable  diligence.  All  employees  must  be  Ottoman 
subjects  except  the  Engineer,  the  technical  staff,  and  Superin- 
tendents. Full  and  complete  records  of  all  kinds  must  be  kept, 
and  also  maps,  and  the  same  at  all  reasonable  times  held  open 
for  inspection  by  local  and  general  government  officials  of  the 
Bureau  of  Mines  or  their  deputies.  If  new  ores  are  found  other 
than  those  mentioned  in  the  concession,  the  government  reserves 
the  right  to  insist  upon  a  new  grant,  or  the  formal  amendment 
of  the  existing  one. 

Ancient  mines,  abandoned  and  forfeited  mines  and  mines  that 
have  been  rejected  by  the  government  engineers  as  probably 
unpayable  are  put  up  at  auction  every  six  to  twelve  months, 
and  granted  to  the  highest  bidder. 

When  a  concession  is  secured  on  alienated  land,  the  holder 
thereof  must  arrange  with  the  surface  owner  for  such  rights 
of  the  surface  as  may  properly  be  needed  for  its  economical 
operation.  If  a  rental  deal  is  made  the  owner  may  collect  double 
the  net  revenue  the  gound  has  been  yielding  to  him.  If  a  sale 
is  made  the  owner  may  collect  double  its  assessed  valuation. 

Mines  cannot  legally  be  abandoned  within  five  years  from  date 
of  concession.  Or,  if  abandoned  sooner,  the  liability  for  rental 
continues  to  the  end  of  that  term.  To  effect  legal  abandonment 
the  concessionaire  must  formally  apply  to  the  Ministry  of  Mines, 
accompanying  his  application  with  full  reports  on  the  history, 
production  and  present  condition  of  the  property,  with  both  sur- 
face and  underground  maps  in  triplicate,  and  list  of  all  improve- 
ments and  installations. 

A  prospector  who  has  discovered  a  mine,  but  who  has  been 
refused  a  concession  for  the  same,  has  the  right  to  collect  from 
anyone  who  subsequently  secures  a  concession  for  it  a  lump 
sum  of  £100  and  5%  in  perpetuity  of  the  net  profits  that  may  be 
realized. 

If  a  third  party,  prospecting  on  a  conceded  tract,  makes  a 
discovery  of  a  mineral  the  right  to  work  which  is  not  mentioned 


240  INTERNATIONAL  MINING  LAW 

in  the  concession,  the  discoverer  has  the  preference — other  con- 
siderations being  equal — in  obtaining  a  concession  himself  to 
work  the  newly  found  mine. 

Concessionaires  on  the  public  domain  must  delimit  the  sur- 
face area  they  desire  to  use  in  connection  with  their  underground 
operations,  and  may  not  exceed  that  area  without  formal  au- 
thority duly  obtained.  On  the  thus  selected  and  monumented 
part  of  the  conceded  tract  prospecting  by  others  is  prohibited, 
while  on  the  remainder  all  duly  licensed  prospectors  have  full 
rights. 

SERBIA 
(Law  of  June  27th,  1900) 

The  State  claims  the  exclusive  ownership  of  all  underground 
property.  Prospecting,  if  any  digging  is  contemplated,  is  not 
permitted,  even  by  a  soil  owner  on  his  own  property,  without 
governmental  authority.  This  however  may  be  obtained  by 
anyone  and  without  cost.  The  document  simply  gives  the  right 
of  surface  inspection,  and  of  making  such  small  excavations  here 
and  there  as  may  be  necessary  in  the  process  of  taking  hand 
samples.  If,  however,  the  explorer  wishes  to  do  more  work  at 
any  particular  place,  he  may  secure  at  a  nominal  cost  an  exclusive 
right,  good  for  one  year,  to  explore  a  defined  tract  not  to  exceed 
in  size  about  125  acres.  This  right  is  renewable  at  the  discretion 
of  the  authorities. 

If  a  permanent  mining  right  is  desired,  a  rectangular  area 
measuring  about  1500  by  600  feet  will  be  granted  whenever  the 
explorer  satisfies  the  authorities  that  he  has  discovered  a  new  ore 
body  or  occurrence  that  can  be  made  profitable,  that  he  is 
personally  qualified  by  knowledge  or  experience  to  bring  about 
such  a  result,  and  that  he  can  command  sufficient  capital.  The 
grant,  when  allowed,  is  for  15  years,  at  the  end  of  which  time  it  is 
renewable  at  the  discretion  of  the  authorities,  and  may  be  made 
perpetual.  But  even  in  the  latter  event  a  sale  of  the  property 
is  not  legal  without  the  consent  of  the  authorities. 


EUROPEAN  SYSTEMS  OF  MINING  LAW  241 

RESULTS 

It  has  not  been  found  possible  to  collect  accurate  statistics 
of  the  metal  production  of  Europe  prior  to  1900.  This  is  due  to 
the  fact  that  a  very  considerable  amount  of  the  ore  treated  in 
European  smelteries  comes  from  other  parts  of  the  world,  and, 
until  recent  years  very  incomplete  records  were  kept  or  given  out 
of  these  importations.  Again,  since  the  outbreak  of  the  war  no 
statistics  are  available  from  Germany,  Austria-Hungary,  the 
Balkan  states  and  Turkey,  and  little  that  is  reliable  from  Russia. 
Hence  the  following  tabulation,  which  covers  only  the  thirteen 
year  period  from  1901  to  1913  inclusive.  And  in  presenting  it 
the  author  desires  to  admit  frankly  that  it  may  be  in  part 
somewhat  inaccurate  because,  in  spite  of  the  great  care  taken, 
he  believes  that  in  the  items  of  copper,  lead  and  zinc  some  metal 
has  been  included  that  originated  in  South  America,  Australasia 
and  South  Africa.  It  must  therefore  be  taken  for  what  it  may  be 
worth.  It  is  thought  that  the  possible  errors  will  not  exceed 
ten  to  fifteen  percent  at  the  utmost. 

Nearly  all  of  the  gold  and  all  of  the  platinum  is  produced  in 
Russia,  nearly  all  of  the  tin  in  England,  and  all  of  the  quick- 
silver in  Spain,  Austria  and  Italy. 

As  the  figures  show  the  gains  to  be  greater  than  the  losses  the 
industry  as  a  whole  is  in  an  advancing  condition,  though  the 
figures  for  platinum  are  somewhat  misleading,  for  it  is  well 
known  that  the  alluvial  fields  where  this  metal  is  found  are 
approaching  exhaustion,  and  are  not  being  extended.  But  the 
decline  in  the  output  of  the  precious  metals  is  not  a  healthy  sign. 
In  all  mining  countries  the  search  for  gold  and  silver  has  always 
been  the  main  cause  of  the  discovery  of  deposits  of  the  other 
metals.  The  base  metals  have  attracted  the  attention  of  the 
prospector  either  while  looking  for  the  noble  ones,  or  after  learn- 
ing by  experience  that  the  latter  are  often  present  to  some  extent 
in  ores  of  the  former.  Whenever  the  production  of  the  precious 
metals  begins  to  decline  the  inference  is  that  few  new  discoveries 
of  any  kind  are  being  made;  and  that  the  industry  is  living  mainly 


242 


INTERNATIONAL  MINING  LAW 


on  its  past  record.  This  is  preeminently  the  case  in  Europe 
where  little  if  any  public  land  remains  outside  of  the  old  domain 
of  the  Turkish  and  Russian  empires,  and  where  the  restrictions 
inevitably  connected  with  searching  over  privately  owned  land 
in  long  settled  communities  discourage  prospecting  and  limit 
the  business  of  discovery  to  enterprises  calling  for  large  capital 
expenditures,  such  as  the  sinking  of  deep  shafts  or  bore  holes, 
or  the  installation  of  dredges  or  hydraulic  plants. 

The  maximum  gold  product  within  the  term  was  $41,866,904 
in  1910,  of  silver  $15,536,699  in  1912,  of  copper  $44,755,990  in 
1913,  of  lead  $57,138,312  in  1912,  of  zinc  $100,264,507  in  1912, 
of  tin  $4,573,800  in  1911,  of  mercury  $4,485,705  in  1911  and  of 
platinum  $13,650,000  in  1912. 


Europe,   1901   to   1913    (inclusive) 
Britain,  Greece,  Italy,  Norv 


:  Austria-Hungary,   Belgium,   France,   Germany,   Great 
ay,  Portugal,  Russia,  Spain,  Sweden  and  Turkey, 


Metal 

Term 

Years 
in 
term 

Total  product 
of  term 

Average 
annual 
product  dur- 
ing term 

Product  of 
1913 

Gain  (  +  ) 
orloss(-) 
in  1913,  as 
compared 
with 
average 

Gold  

1901  to  1913 

13 

$436,312,656 

$33,562,512 

$30,638,906 

-   8% 

Silver  

1901  to  1913 

13 

163,150,915 

12,550,070 

10,853,269 

-  14  % 

Copper  .... 

1901  to  1913 

13 

428,180,305 

32,936,946 

44,755,990 

+  36% 

Lead  

1901  to  1913 

13 

606,179,555 

46,629,196 

50,386,970 

+  8% 

Zinc  

1901  to  1913 

13 

814,690,603 

62,668,508 

83,529,600 

+  33% 

Tin  

1901  to  1913 

13 

45,199,024 

3,476,848 

4,323,002 

+24% 

Mercury.  .  . 

1901  to  1913 

13 

44,186,997 

3,398,999 

4,112,080 

+21% 

Platinum  .  . 

1901  to  1913 

13 

101,645,024 

7,818,848 

12,375,000 

+  58% 

$2,639,545,079 

$203,041,927 

$240,974,817 

+  19% 

CHAPTER  XII 

MISCELLANEOUS  MINING  LAWS.    DIGESTS  OF  THE  MINING  LAWS 

OF  BRITISH  GUIANA,   BRITISH  INDIA,  BURMA,  CEYLON, 

CHINA,    CONGO     FREE     STATE;     CYPRUS,     DUTCH 

GUIANA,    EGYPT,    FEDERATED    MALAY  STATES, 

FRENCH     GUIANA,     GOLD     COAST     AND 

ASHANTI,    HAITI,     JAPAN,     MYSORE, 

NIGERIA,    SIAM    AND      BRITISH 

NORTH  BORNEO 

BRITISH  GUIANA 

< 
(Law  of  1903,  with  amendments  to  January  1st,  1917) 

The  government  claims  the  exclusive  ownership  and  control  of 
all  mineral  substances  occurring  on  the  public  domain,  and  of  the 
precious  metals  and  stones  on  alienated  land.  On  the  latter  the 
owners  thereof  may  prospect  for,  mine,  and  realize  upon  all  other 
mineral  substances  within  their  lines  without  government  permit, 
but  are  required  to  conduct  their  operation,  so  far  as  the  treat- 
ment, safety,  and  health  of  employees  are  concerned,  in  accord- 
ance with  the  prescriptions  of  the  law;  also  to  be  ready  at  all 
reasonable  times,  by  keeping  proper  books  of  account  and  maps, 
to  be  able  to  respond  to  requests  of  government  officials  for 
statistical  information  as  to  their  operations. 

Prospecting  is  not  free.  A  license  is  required,  which  may  be 
obtained  either  at  the  office  of  the  Commissioner  of  Lands  and 
Mines  at  Georgetown,  the  capital,  or  from  any  district  Warden. 
The  cost  is  25  cents.  It  is  good  for  12  months,  and  is  indefinitely 
renewable — at  the  option  of  the  authorities — at  the  same  price. 
It  confers  the  right  to  prospect  for  all  mineral  substances  on  the 
public  domain,  and  for  gold,  silver  and  precious  stones  on  private 

243 


244  INTERNATIONAL  MINING  LAW 

land,  and  to  locate  as  many  claims  as  desired  on  discoveries  of  the 
same,  but  confers  no  right  to  mine,  remove,  or  realize  upon  valu- 
able material  found. 

When  a  discovery  of  importance  is  made  the  discoverer  must, 
within  90  days,  register  his  find  with  the  district  Warden,  or,  if 
there  be  none,  with  the  Commissioner  of  Lands  and  Mines  at  the 
capital,  and  simultaneously  to  apply  for  a  mining  license.  Regis- 
tration fee  is  fifty  cents,  license  fee,  $2.00.  The  latter  continues 
in  force  indefinitely  so  long  as  the  annual  ground  rental  and  roy- 
alty are  paid,  and  the  property  is  operated  to  the  satisfaction  of 
the  Warden  in  accordance  with  the  provisions  of  the  law  and 
the  regulations  thereunder. 

The  rental  required  is  20  cents  per  acre  per  annum,  payable  in 
advance.  The  royalty  is  a  matter  of  bargain  with  the  authorities 
at  the  time  the  mining  license  is  issued. 

The  maximum  size  for  lode  claims  is  1500  by  800  feet;  for  allu- 
vial claims  not  less  than  1500  by  800  feet,  nor  more  than  500  acres. 
When  possible  all  such  tracts  must  be  laid  out  in  the  shape  of 
parallelograms,  and  preferably  as  rectangles.  Vertical  planes 
form  boundaries  in  all  cases,  and  hence  no  extralateral  rights  are 
allowed.  On  precious  stone  claims,  in  addition  to  rental  and 
royalty,  a  charge  of  four  cents  per  cubic  yard  of  gravel  or  soil 
handled  is  periodically  payable,  also  a  fee  of  $100  per  acre — or 
fraction  thereof — the  latter  in  advance. 

After  registration  of  the  mining  license,  conveyancing  rights 
are  complete,  but  must  be  effected  through  the  government  office. 

The  Commissioner  of  Lands  and  Mines  has  the  power  to  issue 
licenses  giving  exclusive  prospecting  and  mining  rights  on  pri- 
vately owned  land  for  gold,  silver,  and  precious  stones,  but  not  for 
any  other  metals  or  substances.  The  soil  owner,  however,  may 
operate  without  license  for  the  latter,  but  not  for  the  former. 

The  government  may  at  any  time  proclaim  a  mining  district  for 
all  mineral  substances  on  the  public  domain,  and  for  the  precious 
metals  and  stones  on  alienated  land,  and  appoint  a  Warden  in 
charge  of  it.  As  soon  as  the  public  are  officially  notified  of  the 
boundaries  of  such  a  proclaimed  area,  all  entry  therein  or  exit 


MISCELLANEOUS  MINING  LAWS  245 

therefrom  is  prohibited  except  at  certain  specified  stations,  and  at 
these  travelling  parties  of  either  natives  or  whites  must  stop  and 
allow  themselves  to  be  searched  and  questioned. 

The  governor  has  the  power  to  grant  a  concession  for  mining  at 
any  time.  Its  size,  period,  and  terms  are  matters  of  negotiation 
except  that  the  first  item  may  not  be  more  than  500  acres.  Ex- 
clusive prospecting  tracts  may  also  be  secured.  In  both  cases  the 
details  of  term,  rental,  royalty  and  other  matters  are  arranged 
between  the  government  and  applicant. 

BRITISH  INDIA  AND  BURMA 

(Law  of  September  15th,  1913,  with  amendments  to  January  1st,  1917) 

Inspection  of  unoccupied  government  land  and  the  taking  of 
samples  for  assay  or  display  from  the  surface  are  free.  Upon 
occupied  land  the  permission  of  the  owner  must  be  obtained. 
But  no  excavating  or  digging  can  be  carried  on  without  a  pros- 
pecting license,  and  before  this  will  be  granted  the  applicant 
must  show  to  the  satisfaction  of  the  authorities  that  he  is  a 
loyal  subject  of  the  British  Empire. 

The  prospecting  license  is  granted  only  in  connection  with  a 
selected  tract  of  land.  To  secure  it  application  is  made  to  the 
Collector  of  the  district  in  which  the  tract  lies,  and  a  sketch 
map  presented.  Before  the  latter  is  prepared  the  tract  may 
be  marked  off  on  the  ground  by  suitable  corner  stakes  or  cairns 
of  stone.  A  deposit  of  a  sufficient  amount  to  cover  the  cost 
of  a  survey  is  also  required,  and  in  addition  a  deposit  of  100 
rupees  (about  $32)  per  square  mile — or  fraction  thereof — of  the 
tract,  or  proper  security  must  be  given.  The  term  allowed  is 
one  year,  with  an  extension  of  two  years  at  the  option  of  the 
authorities.  When  the  license  is  granted  there  is  payable  a 
fee  not  greater  than  one  rupee  per  acre  or  fraction  thereof  per 
yearly  term. 

During  the  life  of  the  license  the  holder  has  the  exclusive 
right  of  exploration  on  the  tract,  and  may  realize  upon  substances 
found  upon  payment  of  the  royalties  as  hereinafter  given.  An 
individual  or  company  may  take  out  as  many  of  these  as  are 


246  INTERNATIONAL  MINING  LAW 

desired,  and  after  registration  the  franchise,  may  be  sold  or 
encumbered,  provided  the  grantee  is  a  party  satisfactory  to  the 
authorities.  The  document  of  conveyance  must,  however, 
be  registered  and  a  transfer  fee  of  50  rupees  paid.  Within  its 
term  or  that  of  its  extensions  the  holder  is  entitled  to  demand 
a  lease  on  any  substances  found  except  precious  stones. 

The  maximum  lease  area  is  10  square  miles,  which  may  be 
selected  by  the  licensee  in  one  or  more  blocks  all  of  which  must 
be  wholly  within  the  prospecting  tract.  But  before  the  lease 
is  granted  the  Collector  has  the  right  to  demand  of  the  applicant 
confidentially  all  information  in  his  possession  as  to  mineral 
found  or  geological  formations  and  conditions  encountered  on 
those  parts  of  the  prospecting  area  not  asked  for. 

A  deposit  of  $160  (500  rupees)  must  accompany  the  applica- 
tion, also  a  sketch  plan  of  the  ground  desired,  a  statement  of  the 
mineral  or  minerals  it  is  expected  to  produce,  and  the  period 
for  which  the  lease  is  desired.  If  the  map  is  not  considered 
satisfactory  by  the  authorities,  they  have  the  power  to  order 
one  made  by  a  government  engineer  at  the  applicant's  expense,  as 
a  preliminary  to  which  they  can  demand  the  delimiting  of  the 
area  by  the  setting  of  stakes  or  cairns  of  stone  at  each  corner. 

In  general  leased  areas  must  be  rectangles  with  lengths  not 
more  than  four  times  the  widths.  But  the  Governor  in  Council 
may  authorize  other  shapes  and  dimensions,  as  for  dredging 
areas,  when,  in  his  opinion,  the  circumstances  warrant  it.  The 
term  cannot  exceed  30  years,  but  a  renewal  for  an  equal  period 
is  obtainable  at  the  option  of  the  authorities  and  on  such  new 
terms  as  they  may  set.  A  lease  confers  the  right  to  mine  for  and 
recover  only  such  substances  as  are  expressly  stated  therein. 
If  others  are  found  a  new  lease  must  be  taken  out  to  cover  them. 
The  royalties  demanded  are  as  follows: 

On  coal  and  mica,  5%  of  the  sale  value  at  the  pit's  mouth  with 
a  minimum  of  four  cents  per  ton. 

On  oil,  16  cents  per  40  gallons.  On  iron,  one  cent  per  ton  of 
crude  ore. 

On  gold  and  silver,  7J£%  of  the  annual  profits  or  2^%  on 


MISCELLANEOUS  MINING  LAWS  247 

the  gross  value  of  the  ore  treated  or  sold,  at  the  option  of  the 
government.  On  all  other  minerals,  2J^%  of  the  sale  value 
at  the  mine  or  after  passing  through  dressing  works. 

There  is  also  due  under  certain  circumstances  what  is  called  a 
"dead  rent,"  the  amount  of  which  is  fixed  at  the  discretion  of  the 
authorities,  but  may  not  be  less  than  two  cents  per  acre  per 
annum  for  iron  ore,  eight  cents  per  acre  for  coal,  gypsum,  bauxite 
and  other  industrial  minerals  and  32  cents  per  acre  for  gems, 
precious  metals  and  base  metals.  This  tax  is  levied  only  when 
the  operations  of  the  lessee  are  not  satisfactory  to  the  govern- 
ment, and  when  the  royalty  being  paid  is  not  as  much  as  the 
tax  would  amount  to. 

For  such  surface  area  as  the  lessee  may  require,  a  rental  of 
not  less  than  eight  cents  and  not  more  than  32  cents  per  acre 
is  demanded,  payable  annually  in  advance.  Leases  are  assign- 
able provided  the  grantee  is  an  individual  or  corporation  satis- 
factory to  the  government,  and  under  the  condition  that  the 
intention  to  transfer  and  all  particulars  of  the  transaction  be 
disclosed  within  one  month  of  the  date  of  the  transfer,  and  the 
document  of  conveyance  registered  at  the  office  of  the  Collector 
within  a  further  period  of  two  months.  Registration  fee  is 
$16.00.  Operations  in  earnest  and  with  all  reasonably  proper 
appliances  must  be  under  way  within  one  year  of  the  date  of  the 
lease,  and  continued  thereafter  with  diligence  and  skill.  Com- 
plete accounts  and  working  maps  must  be  maintained,  and  the 
same,  together  with  all  parts  of  the  property,  both  above  and 
underground,  held  open  for  inspection  and  examination  at  all 
reasonable  hours  by  the  authorities. 

Leases  on  areas  yielding  gem  stones  may  be  secured  only 
through  negotiations  with  the  Governor  General  in  Council. 
No  lease  of  any  kind  may  be  abandoned  without  first  giving 
the  authorities  12  months'  notice  of  the  intention. 

CEYLON 

The  government  claims  the  exclusive  ownership  of  all  minerals, 
both  in  the  surface  soil  and  below  it  in  the  bed  rock  on  the  public 

17 


248  INTERNATIONAL  MINING  LAW 

or  Crown  lands,  but  admits  that  surface  ownership  carries  with 
it  all  underground  rights  except  where  the  latter  have  been 
expressly  reserved  in  the  deed  of  grant.  As  Ceylon  was  well 
settled  before  it  passed  into  the  status  of  a  Crown  colony  of  the 
British  Empire,  the  public  domain  is  not  large,  and  is  confined 
mainly  to  the  mountainous  and  difficultly  accessible  parts  of  the 
island. 

Prospecting  and  mining  for  the  precious  metals  and  gem  stones 
is  forbidden,  except  to  holders  of  government  licenses.  It  is 
not  clear  whether  these  must  be  obtained  by  searchers  for  other 
minerals,  but  the  presumption  is  that  they  should  be.  A  license 
costs  five  rupees,  is  good  for  one  year  and  may  be  renewed 
for  two  more  at  the  option  of  the  government;  and  it  confers 
the  right  to  search  for  and  recover  those  substances  specified 
in  it  when  found  on  a  selected  tract,  the  name  of  the  owner  of 
which — if  any — must  be  given,  and  his  consent  in  writing  pre- 
sented when  the  license  is  applied  for.  The  maximum  ground 
rent  claimed  by  the  government  from  the  holder  of  a  prospecting 
license  is  one  rupee1  per  acre  per  annum,  and  the  maximum  royalty 
is  15%  on  precious  metals  and  stones,  10%  on  plumbago  and  20% 
on  all  other  minerals.  In  practice  these  rates  are  often  reduced 
temporarily,  and  the  amount  of  each  substance  that  may  be 
taken  away  and  sold  is  fixed,  the  intent  being  to  encourage  the 
licensee,  after  a  reasonable  time  devoted,  to  exploring,  to  apply 
for  a  lease.  Licenses  are  not  transferable,  and  the  holder  of 
one  may  at  any  time  during  its  life  be  called  upon  to  respond  to 
claims  for  damages  by  the  surface  owner  for  injuries  inflicted 
or  usage  interfered  with,  or  to  give  security  for  what  may  occur 
in  the  future  as  the  result  of  his  operations.  At  the  termination 
of  the  license  period  or  its  extensions,  the  licensee  must  fill  up  or 
fence  all  excavations  to  the  satisfaction  of  the  authorities.  At 
any  time  during  its  life  the  holder  has  the  preferential  right  to 
apply  for  a  lease  if  the  tract  is  on  the  public  domain,  excepting 
for  ground  yielding  precious  stones,  where  the  government 

1  The  rupee  is  worth  about  32  cents  in  U.  S.  money. 


MISCELLANEOUS  MINING  LAWS  249 

reserves  the  right  to  reject  any  and  all  applications,  or  to  grant  the 
ground  to  whom  it  choses. 

Applications  for  leases  are  made  to  the  local  Agent  of  the 
central  government  in  whose  department  the  land  desired  is 
situated,  and  must  be  accompanied  by  a  deposit  (not  to  exceed 
1000  rupees)  to  cover  costs  of  investigation  of  title,  surveys,  etc. 
They  are  granted  only  on  public  or  Crown  land.  Each  applica- 
tion must  state  the  mineral  or  minerals  expected  to  be  recovered, 
and  must  be  accompanied  by  a  map  of  the  tract  giving  its  situa- 
tion with  respect  to  well  known  land  marks  in  the  vicinity.  The 
area  asked  for  cannot  be  less  than  10  acres,  nor  more  than  100. 
No  individual  or  corporation  may  become  the  holder  of,  or  an 
interested  party  in  leases  to  an  extent  exceeding  a  total  of  500 
acres.  The  ground  asked  for  must  be  of  rectangular  shape,  with 
length  not  greater  than  four  times  its  width. 

The  term  of  lease  cannot  exceed  30  years  and  no  agreement  for 
its  renewal  or  extension  is  permitted  without  special  authority 
from  the  governor  of  the  colony.  A  rental  of  100  rupees  per 
acre  per  annum  is  payable  in  advance.  Royalties  on  sales  are  as 
follows:  on  plumbago  selling  at  300  rupees  per  ton  of  2240  Ibs., 
10%;  and  on  all  of  less  value,  5%;  on  all  other  minerals  not  over 
20%.  But  when  the  royalty  exceeds  the  rental  in  amount  the 
latter  is  remitted.  All  other  conditions  and  terms  are  arranged 
by  negotiation  between  the  applicant  and  the  authorities. 

CHINA 

Although  China  is  now,  and  has  been  for  centuries,  a  consider- 
able producer  of  several  of  the  metals — notably  copper,  tin,  and 
antimony — it  has  no  mining  law.  However,  in  those  districts 
where  most  of  the  mines  are  situated,  namely  Yun-Nan,  Se- 
Tchouan,  Konei-Tcheou,  and  Kouang-Si,  the  industry  is  con- 
ducted under  a  code  of  customs  of  great  antiquity,  which — as 
would  naturally  be  expected — are  based  on  very  primitive  con- 
ceptions of  human  and  property  rights.  There  is  of  course  no 
public  domain  remaining  in  the  country.  Every  inch  of  the  sur- 
face that  will  produce  food  for  man  or  cattle  is  owned,  and  either 


250  INTERNATIONAL  MINING  LAW 

cultivated  or  used  as  pasture.  The  owners  make  no  claim  to 
underground  rights  of  any  kind,  and  no  one  attempts  to  explore 
for  ore  except  the  members  of  certain  families  and  tribes  who  have 
held  the  right  from  time  immemorial.  For  these,  prospecting 
and  mining  are  absolutely  free.  They  may  begin  excavating  at 
any  time  upon  any  piece  of  land,  without  permission  of  the  owner 
or  of  the  authorities,  and  without  becoming  to  the  least  degree 
responsible  to  the  former  for  any  damage  to  his  premises,  or  for 
any  inconveniences  in  its  usage.  The  one  right  possessed  by  a  sur- 
face owner  in  connection  with  mining  is  the  privilege  of  retaining 
10%  of  the  material  brought  to  the  daylight  through  a  mine 
entrance  situated  on  his  land. 

The  male  adult  miners  belonging  to  the  mining  caste  operate 
either  singly  or  in  small  or  large  mining  groups  as  they  may  prefer, 
but  generally  in  groups,  and  under  the  captaincy  of  a  man  who  is 
not  of  their  caste,  but  belongs  to  the  lowest  grade  of  the  mercan- 
tile or  trading  class.  He  is  never  allowed  to  go  underground  or 
to  direct  mining  operations.  His  function  consists  in  acting  as  a 
business  intermediary  or  agent  for  the  miners  in  supplying  them 
with  food,  clothing,  tools,  and  other  necessities,  and  in  disposing 
of  the  ore  produced.  The  latter  is  sometimes  beneficiated  in  the 
vicinity,  but  more  often  exported  to  other  regions  for  such  treat- 
ment as  may  be  necessary  to  make  it  marketable.  He  also  cares 
for  the  food,  shelter,  and  clothing  requirements  of  the  families 
of  the  miners  while  they  are  at  work  on  the  property  in  his  care, 
and  is  absolutely  responsible  for  the  health,  safety,  and  lives  of 
the  workmen.  Finally,  out  of  the  proceeds  of  ore  sales,  he  must 
manage  to  keep  from  the  rapacity  of  the  ore  buyers,  the  govern- 
mental officials,  and  the  tax  collectors,  his  own  small  compensa- 
tion or  wage,  if  he  can. 

The  miners,  once  underground  and  under  cover,  pursue  the  ore 
in  any  and  all  directions  without  regard  to  surface  boundary  lines, 
and  are  never  molested  or  interfered  with  by  those  under  whose 
property  they  delve,  even  when,  as  is  sometimes  the  case,  the  foun- 
dations of  houses  and  other  structures  are  undermined,  and  loss 
or  disaster  results.  Meantime  they  pay  royalty  only  to  the 


MISCELLANEOUS  MINING  LAWS  251 

individual  who  owns  the  tract  upon  which  is  the  entrance  to  their 
workings.  It  often  happens  that  after  burrowing  around  through 
hundreds  of  feet  of  low  drifts  the  miners  will  come  to  the  surface 
for  air  at  a  point  far  distant  from  the  opening  where  their  opera- 
tion began.  The  latter  is  then  abandoned,  and  thereafter  the 
royalty  is  paid  to  the  owner  of  the  tract  upon  which  is  the  new 
entrance. 

When  two  groups  of  miners  working  under  separate  captains 
encounter  each  other  underground,  the  mineral  in  the  face  where 
they  meet  is  divided  between  them,  and  each  resumes  opera- 
tions in  another  direction.  There  is  rarely  any  quarreling  at  such 
meetings. 

The  discoverer  of  a  new  mine  or  a  new  ore  body  in  an  old  mine 
is  held  to  be  the  sole  owner  of  it,  with  the  right  to  pursue  it  in  any 
and  all  directions  until  he  meets  another  discoverer  advancing 
from  some  other  starting  point  on  the  same  vein  or  deposit.  In 
each  case  a  distinct  and  definite  underground  property  right  is 
considered  to  have  been  established,  which  is  perpetual,  and 
cannot  be  annuled  by  cessation  of  work  or  even  abandonment  of 
the  premises  for  years.  This  right  descends  from  father  to  son 
indefinitely.  There  are  no  government  records  of  such  matters, 
but  the  chain  of  title  is  preserved  with  great  care  in  family 
archives.  Naturally,  after  a  system  of  this  kind  has  been  in  exis- 
tence for  even  a  few  generations  in  a  mining  region,  if  it  is  desired 
to  secure  a  large  area  there  for  modern  operative  purposes,  prac- 
tically the  whole  population  of  the  vicinity  must  be  bought  out  or 
otherwise  satisfied,  before  a  title  of  any  value  can  be  secured,  and 
even  then  there  is  no  certainty  that  it  will  not  be  attacked  sooner 
or  later  by  descendants  of  families  that  have  moved  out  of  the 
region.  So  far  the  government  appears  to  have  made  no  efforts 
to  alter  this  condition  of  affairs. 

THE  CONGO  FREE  STATE 

There  are  two  mining  laws  in  force  in  this  great  region,  one  of 
which  applies  only  in  that  part  of  it  which  is  known  as  the  Ka- 
tanga mineral  field,  while  the  other  governs  operations  over  the 


252  INTERNATIONAL  MINING  LAW 

remainder  of  the  territory  in  question.  As  is  generally  known, 
the  administrative  control  of  the  valley  of  the  Congo  river  was,  in 
1897,  placed  in  the  hands  of  Belgium.  At  that  time  little  if 
anything  was  known  of  its  mineral  possibilities.  What  govern- 
ment existed  was  of  decrees  by  King  Leopold,  under  whose  rule 
the  exports  consisted  principally  of  rubber  and  ivory.  When 
it  became  known  that  mineral  indications  existed  in  that  part 
now  known  as  the  Katanga  district,  a  code  of  mining  laws  was 
promptly  promulgated  to  cover  the  assumed  necessities  of 
the  case.  This,  known  as  the  Congo  code,  is  still  in  force  in  very 
much  the  same  shape  as  originally  framed.  Later,  when  the  very 
remarkable  mineral  resources  of  the  Katanga  field  became  better 
known,  it  was  considered  advisable  by  those  in  control  to  provide 
a  special  code  for  that  region,  which  is  known  as  the  Katanga  law, 
and  which  governs  operations  in  a  field  that  covers  about 
200,000  square  miles. 

The  mineral  production  of  the  Congo  basin  is,  as  yet,  merely 
nominal,  because  of  the  great  distance  of  the  mines  from  the 
coast,  the  enormous  capital  and  long  time  required  to  establish 
lines  of  communication  to  them,  and  the  fact  that  no  workable 
deposits  of  coal  have  yet  been  found  in  Africa  nearer  than  those 
in  Southern  Rhodesia.  But  it  is  now  connected  by  rail  with 
Capetown  at  the  southern  end  of  the  continent,  and  with  Beira  on 
the  east  coast,  and  this  has  made  possible  the  importation  of 
machinery  and  supplies,  and  of  coal  from  Rhodesia.  Hence  the 
southern  and  eastern  edges  of  the  Congo  basin  are  now  accessible 
and  are  slowly  attracting  a  white  population,  which,  however,  so 
far  consists  almost  entirely  of  Europeans  connected  with  the  com- 
panies that  have  been  organized  in  England,  France,  and  Belgium 
to  operate  the  mines.  There  is  practically  no  prospecting — in 
the  American  sense  of  the  term — in  progress  in  any  part  of  the 
region,  and  really  never  has  been,  for  the  mineral  deposits  that 
have  so  far  attracted  the  attention  of  capitalists  there  have  been 
known  of  and  worked  by  the  natives  for  centuries  for  their  con- 
tents in  copper,  and  very  few  of  the  whites  that  have  come  into 
the  country  are  of  the  class  that  would  produce  mineral  explorers. 


MISCELLANEOUS  MINING  LAWS  253 

Nor  is  it  at  all  likely  that  the  mining  codes  in  force  would  attract 
pioneers  of  that  kind. 

For  the  details  of  these  two  codes  the  author  is  indebted  in  the 
main  to  a  very  comprehensive  article  by  M.  Louis  Aguillon,  which 
appeared  in  the  llth  Series  of  Annales  des  Mines,  Volume  1,  pages 
5  to  28,  of  the  year  1912. 

THE  CONGO  LAW 

(Consisting  of  the  royal  decrees  of  June  8th,  1888,  and  March  20th,  1893, 
with  amendments  dated  July  22nd,  1904,  and  October  18th,  1908) 

The  right  to  prospect  for  and  work  ores  of  the  metals,  coal, 
salines  and  other  mineral  substances  can  be  exercised  only  by  one 
who  holds  a  permit  to  that  effect  from  the  authorities,  the  issue 
of  which  is  discretionary  with  them,  and  in  any  event  must  be 
approved  by  the  king  of  Belgium.  Provided  with  such  a  permit 
a  discoverer  has  a  preferential  right,  during  a  term  of  six  months 
after  notifying  the  authorities  of  a  discovery — if  the  latter  has 
been  made  on  land  not  already  occupied  by  others— to  claim  a 
concession  of  a  tract  not  in  excess  of  about  250,000  acres  in  area, 
for  a  term  of  99  years.  If  the  application  is  allowed,  a  sum  of 
about  $500  must  be  at  once  deposited,  together  with  an  impost  of 
about  80  cents  per  acre  if  the  discovery  is  of  the  precious  metals 
or  stones,  or  about  40  cents  per  acre  if  of  other  substances,  and 
work  in  earnest  must  be  at  once  begun  and  maintained.  In  addi- 
tion, a  royalty  is  taken  of  5%  of  the  net  profits  of  the  business, 
unless  it  amounts  to  less  than  40  cents  per  acre  in  the  case  of  the 
precious  metals  and  stones,  and  10  cents  per  acre  in  the  case  of  the 
other  substances. 

According  to  the  terms  of  Section  2  of  Article  15  of  the  colonial 
charter  of  October  18th,  1908,  it  was  required  that  every  applica- 
tion for  prospecting  or  mining  rights  must  be  left  for  30  days 
during  its  session  on  the  desk  of  the  two  legislative  chambers  of 
the  kingdom  of  Belgium  for  their  consideration  and  approval,  and 
must  include  a  clause  giving  the  government  the  right  to  repur- 
chase the  concession  at  any  time  for  a  reasonable  consideration. 


254  INTERNATIONAL  MINING  LAW 

THE  KATANGA  LAW 

The  Katanga  district,  though  politically  united  in  all  other 
respects  with  the  rest  of  the  Congo  Free  State,  has  been  granted  a 
mining  law  of  its  own,  the  administration  of  which  has  been  dele- 
gated to  a  Committee  composed  of  six  individuals,  four  of  whom 
are  appointed  by  the  Belgian  government  and  two  by  the  Ka- 
tanga Mines  Company,  and  is  known  as  the  Katanga  Special 
Committee,  with  headquarters  at  Elisabeth,  the  capital  of  the 
district.  Also,  the  Katanga  Mines  Company  appears  to  have 
been  granted  by  the  government  of  the  Congo  Free  State  the  right 
to  all  the  undersoil  minerals  of  the  country  until  March  llth, 
1990,  and  is  thus  a  chartered  proprietary  organization  invested 
with  the  privilege  of  underletting  these  mineral  rights  and  to 
administer  the  mining  law  during  the  life  of  its  charter  under  the 
supervision  of  the  Belgian  government.  Its  standing  is  there- 
fore very  similar  to  that  of  the  British  South  Africa  Company 
which  controls  the  region  known  as  Southern  Rhodesia. 

The  law  is  as  follows :  Mineral  substances  are  divided  into  five 
categories,  the  first  three  of  which  depend  respectively  upon  their 
contents  in  the  metals,  in  sulphur  or  phosphorus,  and  in  com- 
bustibles (coal,  asphalts,  etc.).  The  fourth  includes  rock  salt, 
metallic  salts,  and  mineral  springs,  and  the  fifth  diamonds  and 
other  precious  stones.  All  these  are  listed  as  substances  the 
ownership  of  which  does  not  pass  from  the  State  in  grants  of  the 
surface  for  agricultural,  grazing,  and  other  lines  of  surface  activ- 
ity, but  which  remain  the  property  of  the  government  to  be  dis- 
posed of  at  its  discretion  under  the  provisions  of  the  mining  law. 

The  right  to  prospect  is  not  free,  but  may  be  allowed  through 
the  purchase  of  what  is  called  a  " General  License"  which  permits 
surface  inspection  throughout  Katanga  on  lands  not  already 
under  some  form  of  mineral  concession.  It  does  not  confer  exclu- 
sive privileges  anywhere.  However,  another  document  called  a 
" Special  License"  is  obtainable  which  does  permit  exclusive 
rights  over  a  defined  and  registered  tract.  Neither  of  these 
licenses  gives  anything  more  than  the  right  to  inspect,  explore, 


MISCELLANEOUS  MINING  LAWS  255 

and  develop.  If  it  is  desired  to  conduct  full  mining  operations 
and  realize  upon  substances  produced,  what  is  called  a  "  Working 
License"  must  be  taken  out,  and  in  this  the  substance  or  sub- 
stances expected  to  be  recovered  from  the  operations  must  be 
clearly  specified.  The  general  license  is  good  for  two  years, 
costs  about  $20  and  is  indefinitely  renewable  at  the  same  price 
for  the  same  term.  If  it  is  desired  by  the  holder  to  use  on  pri- 
vately owned  land  the  right  to  do  so  can  be  obtained  from  the 
government,  if  the  owner  refuses  to  grant  it.  This  form  of  per- 
mit also  allows  of  search  on  areas  covered  by  a  special  or  working 
license  for  all  minerals  not  specifically  listed  in  those  documents. 

The  special  license  confers  the  exclusive  right  to  search  for  all 
substances  specifically  listed  therein,  on  a  circular  tract  having  a 
diameter  of  about  3000  feet,  and  containing  therefore  about  200 
acres,  provided  the  objects  of  search  are  the  precious  metals  or 
stones.  In  all  other  cases  the  tract  is  a  circle  with  a  diameter  of 
about  15,000  feet  corresponding  roughly  to  about  5000  acres. 

In  all  cases  priority  of  discovery  determines  priority  of  right  to 
apply  for  a  defined  tract.  A  discovery  stake  must  be  planted 
with  the  date  of  discovery  clearly  inscribed  thereon,  and  within 
30  days  thereafter  written  application  must  be  made  in  person  or 
by  attorney  to  the  Bureau  of  Mines.  This  application  is  posted 
at  the  Bureau  for  40  days  during  which  time  all  protests  against 
its  issue  must  be  filed  at  the  same  place.  If  none  appear  the 
claim  is  usually  awarded.  But  the  law  gives  the  authorities  the 
right  to  refuse  any  and  all  applications  in  whole  or  in  part,  if,  in 
their  opinion,  they  conflict  with  previously  granted  rights  of  any 
kind.  Any  desired  number  of  such  reserved  tracts  may  be  ap- 
plied for  and  secured  by  an  individual  or  company.  Their  term 
is  two  years,  renewable  once  for  a  like  period.  The  cost  in  each 
case  is  about  $40,  and  the  right  so  acquired  is  transferable  after 
the  payment  of  a  tax  of  5%  of  the  consideration  passed  each  time 
that  a  transfer  is  made.  The  holder  acquires  no  right  under  this 
license  to  realize  on  mineral  found,  but  will  be  given  that  privilege 
to  a  limited  extent  upon  request,  and  the  payment  of  10%  of  the 
gross  value — at  tne  mine — of  all  products  sold. 


256  INTERNATIONAL  MINING  LAW 

At  any  time  during  the  life  of  a  special  license  the  holder  thereof 
may  apply  for  and  secure  a  working  license,  provided  he  can 
satisfy  the  authorities  that  he  has  sufficient  capital  at  his  com- 
mand to  operate  the  property  properly.  This  license  permits  of 
the  selection  of  a  rectangular  tract  of  any  size  desired,  and  dis- 
posed in  any  position  selected,  so  long  as  it  lies  completely  within 
the  circular  area  covered  by  his  special  license.  Whatever  its  date 
of  issue  it  expires  by  limitation  on  March  llth,  1990,  at  which 
time,  according  to  the  contract  in  force  between  the  Congo  Free 
State  and  The  Katanga  Mines  Company,  the  charter  of  the  lat- 
ter terminates. 

If  more  surface  is  required  outside  of  this  tract  for  legitimate 
mining  purposes  in  connection  with  the  working  license  grant,  the 
holder  is  able  to  secure  it  either  directly  from  the  Company,  if  the 
desired  area  is  unoccupied,  or  from  surface  owners  through 
the  authorities  who,  if  necessary,  will  institute  condemnation 
proceedings. 

Territory  acquired  by  virtue  of  the  working  license  cannot  be 
sold  or  incumbered  without  the  consent  of  the  authorities,  but  if 
the  consent  is  obtained  a  transfer  fee  of  5%  of  the  consideration 
passed  is  payable.  On  such  a  concession  the  annual  payments  are 
as  follows:  First,  1%  of  the  gross  value  of  the  product  unless 
that  amounts  to  less  than  about  four  cents  per  acre  of  its  area, 
for  all  substances  except  precious  metals  and  stone;  and  5%  of 
the  gross  value  of  the  product  in  the  case  of  these  latter.  Second, 
33%  of  the  net  profits  realized.  But  this  tax  may  be  com- 
pounded in  the  case  of  a  joint  stock  company  by  the  delivery  of 
one-third  of  its  shares  to  the  authorities,  and  allowing  them  one 
Director  on  its  board  of  Managers,  with  the  further  right  to 
subscribe  for  20%  of  any  increase  of  capitalization  that  may  be 
determined  upon  in  the  future. 

Forfeiture  occurs  automatically  in  the  case  of  all  licenses  upon 
the  non-payment  of  any  sum  due  to  government,  and  if,  at  the 
end  of  two  years  after  the  issue  of  the  concession,  work  in  earnest 
and  with  all  reasonable  proper  appliances  and  facilities  is  not  in 
progress. 


MISCELLANEOUS  MINING  LAWS  257 

CYPRUS 

In  this  island,  which  is  a  Crown  colony  of  the  British  Empire, 
and  where  remarkably  extensive  remains  of  ancient  mining 
operations — mainly  for  copper — exist,  the  mining  law  of  Turkey 
governs,  with  such  modifications  as  were  made  necessary  by  the 
transfer  of  the  country  in  1878  from  Turkey  to  Great  Britain, 
and  such  few  ameliorations  of  the  same  as  have  since  been  ordered 
by  the  local  authorities.  This  law,  as  will  be  noted  by  refer- 
ence to  it,  makes  scant  provisions  for  the  activity  of  prospecting, 
and  the  only  form  of  mining  property  recognized  is  the  concession, 
obtainable  by  direct  application  to  and  negotiation  with  the 
authorities.  The  terms  and  conditions  of  these  grants,  when 
given  are,  within  certain  limits,  wholly  matters  of  offer  and 
bargain.  The  government  requires  a  royalty  of  5%  on  the 
selling  value  at  the  mine  of  all  products,  but  a  minimum  of 
£500  is  fixed,  no  matter  how  small  the  output  may  have  been. 
Although  the  island  abounds  in  workable  deposits  of  lead,  zinc, 
manganese,  and  other  desirable  minerals,  and  still  has  great 
resources  in  copper,  its  metallic  production  is  insignificant,  as 
might  be  expected  so  long  as  the  industry  of  mining  continues 
to  be  under  the  general  system  of  the  Turkish  law,  even  as  im- 
proved by  the  universally  honorable  methods  of  British  rule. 

DUTCH  GUIANA  (SURINAM) 
(Law  of  September,  1882,  with  amendments  to  January  1st,  1917) 

Only  citizens  of  the  Netherlands,  or  of  the  colony  of  Surinam, 
or  companies  legally  organized  under  the  laws  of  one  of  the  two 
countries,  and  represented  in  Surinam  by  a  legally  authorized 
Agent,  may  acquire  and  hold  mining  rights  in  the  colony. 

Prospecting  is  not  free,  upon  either  Crown  or  private  land 
except  upon  the  latter  by  its  owner,  and  then  only  after  giving 
due  notice  to  the  Superintendent  of  the  Crown  Domain.  When 
it  is  desired  to  prospect  upon  the  former  a  written  permit  from 
the  Governor  is  required,  and  for  the  latter  the  written  consent 
of  the  owner. 


258  INTERNATIONAL  MINING  LAW 

All  applications  for  prospecting  privileges  must  be  accompanied 
by  the  name,  nationality,  and  legal  residence  of  the  applicant, 
and  a  map  showing  the  relative  position  of  the  ground  desired, 
and  its  area.  Also  a  receipt  from  the  Colonial  Treasurer  showing 
the  payment  to  him  of  a  sum  equal  to  one  cent  per  hectare  per 
annum  for  the  term  desired.  The  application  must  be  signed 
by  all  parties  in  interest,  or  by  their  duly  authorized  agents,  or, 
if  made  on  behalf  of  a  partnership  or  a  company,  by  its  legal 
representative.  No  application  may  be  for  less  than  200  nor 
more  than  20,000  hectares.  The  Governor,  sitting  in  Privy 
Council,  has  the  right,  for  causes  which  seem  to  him  sufficient, 
to  reject  any  application. 

The  maximum  term  allowed  is  three  years,  which  may  be  re- 
newed twice  for  one  year  each  time,  making  a  possible  total  of 
five  years. 

Before  the  exercise  of  any  rights  granted  by  a  prospecting 
permit,  the  document  must  be  exhibited  to  the  Commissary  of 
the  district  in  which  the  property  lies,  who  is  required  to  visit 
and  verify  the  description,  and,  if  everything  is  correct,  to  register 
it,  which  makes  it  effective.  The  holder  then  has  the  right 
at  any  time  within  its  term,  or  any  extension  thereof,  to  select 
and  stake  off  a  part  or  the  whole  of  the  area,  and  to  apply  for 
the  right  to  mine  thereon. 

A  prospecting  permit  conveys  the  right  to  prospect  only.  It 
gives  no  authority  to  remove  or  realize  upon  any  metals  or 
ores  found,  but  exploring  shafts  and  other  kinds  of  excavations 
may  freely  be  made,  and  drill  holes  sunk.  Assay  samples  may 
also  be  taken  away. 

To  acquire  the  right  to  mine  and  produce  from  any  part  or  the 
whole  of  a  prospecting  area,  application  must  be  made  in  writing 
to  the  Governor,  accompanied  by  a  receipt  from  the  Colonial 
Treasurer  showing  the  payment  to  him  of  a  sum  equal  to  the 
rental  of  the  tract  selected  for  the  first  year  of  the  term  desired. 
No  mining  permit  will  be  issued  for  a  period  of  less  than  one 
year  nor  more  than  40,  nor  for  a  tract  measuring  less  than  200 
hectares.  The  rentals  demanded  are  as  follows: 


MISCELLANEOUS  MINING  LAWS  259 

For  the  first  and  second  years  of  the  term,  10  cents  per  hectare 
per  annum. 

For  the  third  and  fourth  years,  25  cents  per  hectare  per  annum. 

For  the  following  years,  50  cents  per  hectare  per  annum. 

Rentals  are  payable  annually,  and  at  least  30  days  before  the 
end  of  each  year  of  the  term.  Failure  to  do  this  automatically 
terminates  the  franchise. 

The  area  represented  by  any  such  permit,  may,  at  the  option 
of  the  holder  thereof,  be  reduced  at  the  end  of  any  year  of  its 
term,  by  application  in  writing  to  the  Governor  made  at  least 
40  days  before  the  end  of  the  year,  by  which  a  corresponding 
reduction  of  the  rental  for  the  next  year  is  effected.  But 
no  reduction  of  area  to  a  tract  of  less  than  200  hectares  is 
allowable. 

Before  application  is  made  to  the  Governor  for  the  permit 
to  mine,  a  provisional  notice  of  the  application  contemplated 
must  be  given  to  the  Superintendent  of  Crown  Lands,  together 
with  a  map  of  the  premises  desired,  which  must  be  prepared  and 
sworn  to  by  a  Crown  surveyor,  and  said  notice  must  be  registered. 
Within  two  days  thereafter  it  must  be  filed  with  the  Governor. 
The  applicant,  or  his  legal  representative  must  have  a  domicile 
in  Paramaribo,  the  capital  of  the  colony,  the  street  and  number 
of  which  must  be  given. 

The  Governor,  acting  with  the  Privy  Council,  is  empowered  to 
reject  the  application,  in  part  or  as  a  whole,  in  which  case  the 
rental  paid  in  is  in  part  or  wholly  returnable  to  the  applicant. 
The  latter,  on  his  part,  if  he  is  not  satisfied  with  the  decision 
of  the  Governor  in  the  matter,  has  the  right  to  withdraw  his 
application  completely,  and  to  recover  the  full  amount  of  the 
rental  deposited. 

The  right  to  mine,  once  granted,  conveys  all  the  usual  rights 
and  privileges  appurtenant  to  the  business,  and  the  holder  of 
the  franchise  may  also  engage  in  agriculture  on  the  premises,  to 
the  extent  of  raising  thereon  food  for  the  consumption  of  himself 
and  employees,  but  not  for  sale  to  others. 

Such  mining  concessions  may  be  sold  with  the  consent  of  the 


260  INTERNATIONAL  MINING  LAW 

Governor,  who  also,  if  supported  by  the  Privy  Council,  may 
refuse  to  allow  conveyance.  If  allowed,  a  transfer  fee  of  two 
percent  of  the  amount  named  in  the  deed  is  collected  by  the 
Government. 

'No  royalties  or  other  dues  of  any  kind,  except  rental,  are 
imposed  by  the  authorities,  but  all  gold  recovered  must  be 
declared  and  sold  to  the  Government,  who  pays  for  the  same  the 
standard  price  in  coin  or  currency,  less  a  moderate  charge  for 
melting,  refining,  and  assaying. 

When  labor  is  sought,  either  in  prospecting  or  mining,  the 
business  must  be  conducted  in  the  presence  of  the  Commissary 
of  police,  and  in  accordance  with  the  rules  and  regulations 
connected  with  the  employment  of  native  labor,  which  in  fact 
is  the  only  class  of  labor  attainable  in  the  colony.  Labor  cannot 
be  contracted  for  outside  of  the  colony  and  brought  in,  nor  may 
resident  British  Indian  immigrants  be  employed  in  mining  work. 
Each  laborer  whose  employment  is  accepted  by  the  employer 
and  the  Commissary  of  Police  must  be  registered  by  name,  the 
amount  of  wages  payable  to  him  agreed  upon,  the  term  of  employ- 
ment, and  also  the  locality  where  he  is  to  work.  During  this 
term  the  employer  is  responsible  to  the  government  for  his  health, 
good  treatment,  subsistence  and  proper  shelter,  as  well  as  for 
his  wages. 

EGYPT 

(Law  of  1916,  correct  to  January  1st,  1917) 

The  government  claims  exclusive  ownership  of  all  mineral 
substances,  whether  found  on  the  public  domain  or  upon  pri- 
vately owned  land,  and  will  not  sell  its  mineral  territory,  but  will 
grant  long-term  leases  thereon  in  consideration  of  ground  rent  and 
royalty. 

The  law  makes  no  provision  whatever  for  the  general  prospect- 
ing of  the  country,  and  it  would  seem  that  any  one  is  at  liberty  to 
make  cursory  inspection  of  the  surface,  at  least  upon  unoccupied 
land.  But  no  digging  may  be  done  without  a  License,  and  this 
license,  when  issued,  covers  a  specified  area  over  which,  for  the 


MISCELLANEOUS  MINING  LAWS  261 

time  being,  exclusive  exploration  rights  are  permitted.  There 
are  no  such  things  as  "  claims." 

The  government  issues  three  classes  of  mining  franchises,  to 
wit:  the  Mineral  Prospecting  License,  the  Mining  Lease,  and 
the  Mining  Lease  Protection  Agreement.  These  cover  all 
mineral  substances  except  petroleum  and  natural  gas,  for  which 
slightly  different  provision  is  made. 

The  Mineral  Prospecting  license  may  be  preceded  by  a  "  Reser- 
vation "  which  gives  two  months'  exclusive  protection  and  prospect- 
ing rights  over  a  tract  of  land  not  already  occupied  and  not  more 
than  one  mile  long  and  half  a  mile  wide,  at  no  cost  except  the  regis- 
tration of  the  tract  as  delimited  by  location  stakes  set  up  by  the 
applicant,  on  the  assumption  that  the  tract  is  unoccupied,  but  it 
makes  no  guaranties  to  that  effect.  At  the  end  of  that  term 
the  formal  Prospecting  License  must  be  applied  for  if  it  is 
desired  to  hold  the  ground,  and  a  fee  of  25  LE1  (about  $125) 
deposited.  Any  individual  or  corporation  may  take  out  up  to 
four  of  these  tracts  if  they  are  laid  out  in  one  contiguous  and  com- 
pact block.  The  fee  for  each  is  25  LE.  They  confer  tentatively 
the  exclusive  right  to  dig  and  explore,  but  not  to  remove  or  real- 
ize upon  any  material  found,  except  in  the  way  of  samples  for 
testing  or  display.  The  term  is  one  year,  with  privilege  of  two 
renewals  of  the  same  period  and  at  the  same  cost  per  annum,  and 
the  right  to  search  for  one  metal  or  mineral  only.  Application 
for  these  is  made  to  the  Chief  Inspector  of  Mines,  accompanied 
by  the  fee  for  the  first  year,  a  sketch  map  showing  the  locality  and 
surrounding  land  marks  as  accurately  as  possible,  and  the  name 
of  the  substance  to  be  prospected  for.  Within  60  days  after  date 
of  issue  the  applicant  must  apply  for  an  official  survey,  and 
deposit  the  estimated  cost  of  the  same,  which  will  be  not  less  than 
25  LE.  Until  this  is  made  and  approved  only  preferential  rights 
exist,  and  the  government  reserves  the  right  to  refuse  its  issue  in 
case  the  survey  develops  the  fact  that  the  tract  may  be  or  is  more 
suitable  for  other  uses;  or  is  partly  or  wholly  already  assigned 

1  The  letters  LE  signify  the  Egyptian  pound  (£),  which  has  about  the 
value  of  $5.00  U.  S.  gold. 


262  INTERNATIONAL  MINING  LAW 

to  others.  If  granted  the  applicant  must  begin  exploring  work 
in  earnest  before  the  end  of  the  first  yearly  term,  and  continue 
the  same  thereafter  with  reasonable  diligence.  If  he  holds  more 
than  one  prospecting  area  arrangements  can  be  made  with  the 
authorities  by  which  working  conditions  for  all  may  be  performed 
at  one  point  if  desired.  Monthly  reports,  giving  full  particulars 
of  operations  are  required.  A  technically  educated  manager 
must  be  in  charge  of  the  work,  and  the  holder  is  liable  for  a 
reasonable  share  of  the  expenses  of  keeping  order  in  the  district. 
No  conveyancing  rights  exist  for  the  ground  covered  by  a  pros- 
pecting license  until  a  specified  sum — agreed  upon  at  the  time 
of  issue — has  been  expended  in  prospecting,  and  the  amount  of 
the  same  endorsed  upon  the  license  by  the  Department  of 
Mines,  and  then  only  upon  the  payment  of  a  registration  fee  of 
5  LE  (about  $25). 

At  any  time  during  the  term  of  a  prospecting  license  or  its 
extensions,  the  holder  thereof  has  the  right  to  demand  a  lease  of 
the  whole  or  any  part  of  its  area.  In  shape  this  leased  tract  must 
be  a  rectangle,  with  length  not  greater  than  twice  its  breadth. 
The  term  allowed  is  30  years,  with  an  extension  of  10  more.  The 
ground  rental  in  the  case  of  a  sedimentary  deposit  (alluvials  or  coal, 
etc.)  is  1  LE  per  acre  per  annum,  and  for  a  lode  deposit  2  LE.  In 
addition,  for  all  substances,  2  %  royalty  is  required  on  the  gross 
value  of  the  output  at  the  mine.  Work  must  begin  within  four 
months  of  date  of  issue,  and  thereafter  be  practically  continuous 
and  reasonably  energetic.  As  in  the  case  of  the  prospecting 
license  a  technically  educated  manager  must  be  in  control  of  the 
work,  monthly  reports  presented,  share  of  district  policing 
expenses  paid,  complete  maps  kept,  and  two  copies  supplied 
annually  to  the  authorities.  A  lease  gives  full  mining  and  selling 
rights  for  the  product,  but  is  good  for  one  metal  or  substance  only. 
If  others  of  commercial  value  are  found,  and  it  is  desired  to  recover 
them,  new  arrangements  must  be  made  before  production  and 
sale  may  occur.  No  conveyancing  rights  exist  in  the  case  of  the 
lease  except  with  the  consent  of  the  Minister  of  Finance. 

If  ground  outside  of  the  area  of  a  lease  is  desired  for  any  pur- 


MISCELLANEOUS  MINING  LAWS  263 

pose  legitimately  connected  with  mining  or  metallurgy,  such  as 
machinery  or  reduction  works  sites,  tramways,  residences,  etc., 
it  is  obtainable  on  reasonable  terms  on  application  to  the  au- 
thorities. As  soon  as  a  mining  lease  is  issued  all  rights  con- 
nected with  the  prospecting  license  which  preceded  it  cease 
automatically. 

If  the  area  included  in  a  lease  does  not  cover  the  area  comprised 
in  the  prospecting  license  on  which  it  was  based,  and  the  holder  of 
the  lease  desires  to  further  prospect  the  surplus  area,  he  may 
secure  exclusive  exploring  rights  on  the  same  by  applying  for 
what  is  called  the  Mining  Lease  Protection  Agreement,  which  is 
practically  a  new  prospecting  license  on  the  excess  area.  The  fee 
for  this  is  10  PT1  (about  50  cents)  per  acre  per  annum  in  the  case 
of  a  sedimentary  deposit,  and  25  PT  in  the  case  of  a  lode  deposit. 
In  all  other  respects  the  conditions,  rights,  and  obligations  are 
identical  with  those  already  mentioned  for  the  License. 

The  holder  of  a  mining  lease  who  desires  to  surrender  it  and 
abandon  the  property,  must  give  the  Department  of  Mines  six 
months'  notice  of  the  intent  before  he  can  be  relieved  from  the 
obligations  and  duties  of  the  franchise. 

For  petroleum  and  natural  gas  the  prospecting  area  allowable 
is  a  rectangle,  no  side  of  which  is  more  than  two  kilometers  in 
length.  The  term  is  a  year,  with  two  renewals  of  equal  length  at 
the  option  of  the  Department  of  Mines.  The  cost  or  fee  is  25  LE 
per  annum,  and  all  the  other  conditions,  obligations,  and  rights 
are  practically  identical  with  those  of  the  mineral  prospecting 
license.  No  realization  on  the  value  of  product  is  permitted  until 
a  lease  is  taken  out.  The  fee  for  the  latter  is  2%  LE  per  hectare 
per  annum  (about  $5.00  per  acre),  and  the  royalty  7^%  on  the 
gross  value  of  the  product  at  the  point  of  production. 

FEDERATED  MALAY  STATES 
(Law  of  1911,  with  amendments  to  January  1st,  1917) 

In  this  British  dependency,  which  includes  the  native  states 

of  Perak,  Negri  Sembilan,  Pahang,  and  Selangor,  mining  rights 

1  The  letters  PT  signify  the  Turkish  piastre,  which  is  worth  about  Scents. 

18 


264  INTERNATIONAL  MINING  LAW 

of  all  kinds  are  controlled  exclusively  by  the  central  government 
(with  the  exception  of  certain  tracts  called  " ancestral  land" 
in  the  state  of  Perak  which  have  been  held  for  many  years  by  a 
few  native  families) ,  and  are  open  for  occupancy  and  usage  under 
the  annual  and  long  term  leasehold  systems,  in  consideration  of 
ground  rent,  royalty,  and  export  duty  on  products,  and  a 
compliance  with  the  rules  and  regulations  prescribed  for  the 
safety  of  employees  and  matters  of  sanitation. 

Prospecting  is  not  free.  A  license  is  required  which  costs 
from  $25  up,  according  to  circumstances,  and  is  good  for  such  a 
term  as  may  be  agreed  upon  when  issued.  A  fine  of  $1000  is 
imposed  on  anyone  found  prospecting  or  mining  without  the 
document.  Application  for  it  is  made  to  the  chief  official  of  the 
local  Land  Office,  and  must  be  in  writing.  Therein  the  tract 
desired  must  be  described  and  located,  and  the  metal  or  mineral 
expected  to  be  found  stated.  All  details  are  matters  of  negotia- 
tion with  this  official.  A  suitable  sum  must  be  deposited  to 
defray  the  cost  of  the  delimitation  of  the  tract,  and  of  such  an 
examination  of  the  status  of  the  title  as  may  be  deemed  necessary. 
No  application  insures  the  issue  of  the  grant,  nor  even  priority 
of  its  consideration  over  another  for  the  same  area  filed  later. 
If  allowed,  the  applicant  must  specify  the  amount  of  land 
within  its  lines — not  to  exceed  half  its  total  area — for  which  he 
desires  the  prior  and  exclusive  right  to  call  for  a  long-term  lease, 
in  case  his  prospecting  operations  result  in  the  discovery  of  pay- 
able mineral  in  sufficient  quantity  to  warrant  permanent  opera- 
tions. Under  such  a  license  the  holder  thereof  may  explore  and 
realize  upon  material  found,  by  the  payment  of  such  royalty  or 
export  duty  on  the  output  as  the  terms  of  the  contract  specify. 
During  this  preliminary  period  of  occupation  all  operations 
must  be  carried  on  to  the  satisfaction  of  the  district  Warden  and 
his  Inspectors,  and  with  their  full  knowledge. 

At  the  end  of  the  license  term,  if  the  licensee  desires  to  continue 
work,  he  may  apply  for  a  long-term  lease  for  that  proportionate 
area  of  the  tract  specified  in  the  license;  and  if  the  Resident  is 
satisfied  with  the  way  in  which  he  has  been  conducting  his  explor- 


MISCELLANEOUS  MINING  LAWS  265 

ing  operations,  and  is  of  the  opinion  that  mining  there  can  be 
made  profitable,  he  is  empowered  to  grant  the  lease.  He  also 
has  full  power  to  decline  to  do  so  for  reasons  satisfactory  to 
himself. 

Another  form  of  mining  title  is  called  the  "  Individual  Mining 
License."  This  confers  mining  rights  on  small  sized  tracts 
(like  mining  claims)  but  may  be  given  only  on  land  within  the 
limits  of  a  large  tract  which  the  Resident  has  previously  pro- 
claimed to  be  a  mining  field.  Each  license  costs  $5.00,  and 
expires  automatically  at  the  end  of  the  year  of  its  date  of  issue. 
It  is  neither  transferable  nor  renewable  although  a  new  one  for 
the  same  tract  may  be  issued,  and  under  it  all  work  must  be 
carried  on  "in  such  manner  only  as  may  be  approved  by  the 
Warden  or  an  Inspector."  The  size  and  terms  are  wholly  matters 
of  arrangement  between  the  applicant  and  the  authorities. 

Long-term  leases  are  obtainable  by  direct  application  in  writing 
to  the  Chief  of  the  Land  Office,  with  whom  all  details  of  area, 
term,  rental,  royalty,  and  working  conditions  are  arranged.  This 
official  also  has  full  power  to  reject  any  application  without 
explanation.  If  his  approval  is  secured  a  survey  is  required 
and  all  boundary  monuments  must  be  placed  before  the  formal 
lease  will  be  delivered.  When  issued,  it  conveys  full  mining  and 
realization  rights  on  all  metals  and  minerals  found  within  the 
lines,  together  with  the  right  to  use  as  much  of  the  surface  as, 
but  no  more  than,  may  be  necessary  for  legitimate  mining  pur- 
poses. Ground  rent  is  always  payable  in  advance.  Monuments 
must  be  maintained  in  good  repair.  Mining  in  earnest  must 
begin  within  six  months,  and  by  the  end  of  twelve  months  at 
least  one  laborer  per  acre  of  the  leased  tract  must  be  kept 
constantly  at  work. 

FRENCH  GUIANA  (CAYENNE) 
(Law  of  March  10th,  1906,  with  amendments  to  January  1st,  1917) 

For  the  purposes  of  the  law  all  mineral  substances  are  classi- 
fied under  the  three  headings  of  Quarries,  Placers,  and  Mines. 
Quarries  are  deposits  of  material  used  in  constructive  or  orna- 


266  INTERNATIONAL  MINING  LAW 

mental  architecture,  fertilizers,  and  other  analogous  substances, 
with  the  exception  of  nitrates  and  other  salines.  In  general 
this  class  covers  solid  or  stable  deposits  that  may  be  worked  in 
the  open,  and  without  processes  for  underground  mining.  When 
occurring  on  alienated  land  they  belong  irrevocably  to  the  owner 
thereof. 

Placers  are  deposits  in  the  surface  soil  (if  the  latter  is  not  a 
distinct  geological  stratum  other  than  alluvial)  yielding  metals 
or  precious  stones.  These,  wherever  found,  belong  to  the  na- 
tion, and  the  right  to  work  them  can  only  be  procured  by  means  of 
a  government  permit.  When  such  a  permit  is  acquired  all  min- 
ing rights  cease  when  the  underlying  bed  rock  is  reached. 

Mines  include  all  other  kinds  of  mineral  deposits.  Like  the 
placers  they  are  the  property  of  the  nation,  and  the  right  to  work 
them  can  be  obtained  only  from  the  government.  When  such 
a  right  is  granted  it  covers  all  the  substances  that  may  be  found 
within  the  boundaries  of  the  grant,  excepting  placer  deposits  in 
the  surface  soil. 

The  various  substances  on  which  mining  rights  may  be  ob- 
tained are  divided  into  three  categories,  as  follows: 

1.  Combustibles  (coal,  oil,  natural  gas,  asphalts,  and  allied 
materials) . 

2.  Rock  salt  and  other  salines,  mineral  springs,  nitrates,  and 
phosphates. 

3.  All  other  substances,  except  the  class  of  quarries  occurring 
on  alienated  land,  which  belong  to  the  owner  thereof  and  cannot 
be  the  subject  of  a  government  grant.     All  other  mineral  sub- 
stances may  be,  no  matter  where  found. 

Permission  from  the  government  to  mine  any  one  substance 
conveys  also  the  right  to  mine  for  any  other  substance  of  the 
same  class  found  within  the  lines  of  the  granted  area,  but  for 
no  substance  of  any  other  class. 

All  individuals  capable  of  holding  property  in  the  colony, 
whether  citizens  or  aliens,  may  acquire  the  right  to  mine.  But 
aliens  must  previously  establish  their  identity,  and  must  either 
have  a  legal  domicile  in  Cayenne,  the  capital  of  the  colony,  or  a 


MISCELLANEOUS  MINING  LAWS  267 

legally  appointed  representative  there.  Companies  must  be 
established  in  conformity  with  French  law,  and  must  have  a  legal 
residence  or  representative  in  the  capital. 

Prospecting  is  not  free.  A  permit  is  necessary.  It  costs  50 
francs,  is  good  for  one  year,  and  is  renewable  indefinitely  at 
the  same  price.  It  simply  confers  the  right  to  make  preliminary 
investigations  and  explorations  on  the  public  domain  and  on  al- 
ienated land,  but  does  not  give  any  claim-locating  right.  In 
fact  the  law  does  not  provide  for  mining  claims  of  any  specified 
size.  The  hectare  (about  2}^  acres),  however,  is  the  unit  of 
measure  of  areas,  and  no  mining  claim  may  measure  less  than 
200  of  these  units  or  more  than  1000  of  them,  excepting  placer 
claims,  which  run  from  10  to  250  hectares.  In  shape  the  claim 
must  be  rectangular,  with  the  smaller  sides  not  less  than  one- 
quarter  the  length  of  the  longer  ones,  and  the  tract  must  be 
orientated  to  the  true  meridian. 

The  procedure  for  acquiring  mining  property  is  as  follows: 
A  prospecting  permit  is  first  taken  out,  the  holder  of  which  is 
called  a  "permissionaire."  When  after  prospecting  a  region 
a  discovery  (or  an  indication  thereof)  is  made,  the  permissionaire 
plants  a  stake  at  the  place,  on  which  is  inscribed  his  name,  the 
date  of  planting,  and  the  particular  substance  which  he  believes 
he  has  found.  He  then  makes  formal  application  to  the  Bu- 
reau of  Mines  for  an  exclusive  prospecting  area,  which  will  be 
granted  in  the  shape  of  a  circle  with  a  diameter  not  to  exceed 
four  kilometers,  the  center  of  the  same  to  be  the  discovery  stake 
erected.  Application  for  this  area  must  be  made  within  three 
months  of  the  date  placed  on  the  discovery  stake,  and  it  will 
be  granted  or  refused  within  five  days.  The  cost  is  40  centimes 
per  hectare  of  area  per  annum.  It  is  renewable — at  the  op- 
tion of  the  government — at  a  cost  of  50  centimes  per  hectare 
per  annum  for  not  over  three  more  years. 

Areas  of  this  kind  may  be  located  on  either  public  or  private 
land,  but  in  the  latter  case  the  consent  of  the  owner  must  first 
be  obtained  if  possible,  and  a  bargain  made  with  him  for  indem- 
nity for  any  damage  that  may  accrue.  If  no  satisfactory  ami- 


268  INTERNATIONAL  MINING  LAW 

cable  arrangement  can  be  made,  the  prospector  can  apply  to 
the  Governor,  who,  acting  through  the  Bureau  of  Mines,  will 
secure  a  reasonable  contract  with  the  soil  owner. 

Having  secured  such  an  area  the  holder  has  the  right  at  any  time 
during  its  term  (or  the  extensions  thereof) ,  to  apply  for  a  defined 
tract  within  its  limits  not  less  than  200  hectares  or  more  than  1000, 
upon  which  to  conduct  mining  operations.  This  grant  is  called 
a  concession,  and  the  holder  of  one  a  "  concessionaire."  In 
applying  for  it  a  map  of  the  locality  on  a  scale  of  1  to  10,000 
must  be  presented,  and  the  class  of  substance  to  be  produced 
must  be  stated.  Simultaneously  the  first  year's  rental  is  payable. 
This  is  figured  at  the  rate  of  60  centimes  per  hectare  up  to  500 
hectares,  and  75  centimes  per  hectare  from  500  to  1000  hectares. 
Thereafter  renewals  may  be  obtained  indefinitely  by  the  payment 
annually  in  advance  of  100  francs  per  hectare  for  all  areas  up  to 
100  hectares,  and  one  franc  for  each  hectare  over  that  amount. 
Mining  areas  so  obtained  must  be  marked  by  posts  set  at  all 
corners  in  the  following  way.  A  hole  one  meter  in  diameter  and 
one  meter  deep  is  excavated,  the  post  set  at  its  center  and  pro- 
jecting at  least  one  meter  above  the  surface,  and  the  hole  then 
filled  with  stones.  On  each  post  must  be  inscribed  the  name  of 
the  claimant,  the  date  of  the  issue  of  the  grant,  and  its  number. 
The  application  for  such  a  grant  is  at  once  registered  at  the  office 
of  the  Bureau  of  Mines  and  a  receipt  given  for  the  first  year's 
rental.  The  papers  then  go  to  the  capital  of  the  colony,  the  ap- 
plication is  advertised  in  the  official  Gazette,  and  if  no  objections 
to  its  issue  are  filed  within  a  term  of  six  months,  the  grant  is 
executed  by  the  Governor  and  the  title  is  complete. 

The  right  to  claim  a  concession  accrues  only  after  a  prospecting 
area  has  been  applied  for  and  obtained,  and  at  least  two-thirds 
of  the  concession  must  be  within  this  area.  The  other  one-third 
may  be  outside  of  its  limits  if  there  is  free  land  on  which  to  place 
it. 

In  the  case  of  placer  locations  the  area  permitted  is  not  less 
than  ten  nor  more  than  250  hectares,  but  as  many  of  such  tracts 
as  desired  can  be  applied  for  by  anyone  who  has  taken  out  a  pros- 


MISCELLANEOUS  MINING  LAWS  269 

pecting  permit,  and  who  has  therewith  applied  for  and  secured 
a  prospecting  area.  Claimants  may  begin  work  at  once  after 
application,  and  may  continue  working  during  the  period  usu- 
ally required  for  confirmation  (six  months),  subject  however  to 
stoppage  and  restitution  of  values  recovered  meantime  if  for  any 
reason  the  concession  is  npt  allowed.  When  allowed,  a  placer 
concession  is  good  for  a  term  of  six  years,  and  is  indefinitely 
renewable  for  terms  of  the  same  length,  subject  to  the  payment 
of  the  annual  rental. 

Recording,  surveying,  and  other  fees  and  charges  connected 
with  applications  for  prospecting  and  working  rights  are 
reasonable. 

On  privately  owned  land,  or  on  government  land  under  lease 
for  agricultural,  grazing,  or  other  purposes,  the  owner  or  tenant 
may  prospect  and  mine  without  formally  applying  for  an 
area. 

On  all  concessions  granted,  energetic  work  in  good  faith  must 
begin  within  six  months  from  date  of  grant,  and  be  maintained 
thereafter  with  reasonable  persistency.  All  stakes  and  monu- 
ments must  be  kept  in  good  order  at  the  expense  of  the  claimant. 
If  a  "  permissionaire "  or  a  concessionaire  desires  to  abandon 
his  property,  notice  of  the  intent  must  be  given  to  the  Bureau 
of  Mines  a  year  in  advance  of  the  act,  and  at  the  time  of 
the  abandonment  all  stakes  and  notices  must  be  carefully 
removed. 

On  alienated  land  locators  must  arrange  with  the  owners 
thereof  for  surface  rights.  If  the  latter  are  unreasonable  in 
their  demands  appeal  may  be  had  to  the  authorities,  who  will 
secure  equitable  terms.  On  the  public  domain,  if  not  leased 
for  other  purposes,  full  surface  rights  go  with  the  mining  grant. 
Upon  leased  public  domain,  if  satisfactory  terms  cannot  be 
secured  from  the  tenant,  the  miner  may  use  what  surface  he 
needs  provisionally,  pending  adjustment  by  the  authorities. 

The  prospecting  permit  does  not  give  to  the  "  permissionaire  " 
the  right  to  realize  in  any  way  on  ores  or  metals  found.  But  as 
soon  as  a  defined  area  is  selected,  and  the  rental  for  a  year  paid, 


270  INTERNATIONAL  MINING  LAW 

all  material  lawfully  found  may  be  converted  into  money.  As 
soon  as  a  concession  is  issued,  the  prospecting  area  that  preceded 
it  automatically  becomes  void  and  non-existent. 

All  miners  must  keep  books  of  account,  in  accordance  with 
models  prescribed  by  the  law,  also  working  plans  of  the  mine. 
These  must  be  open  for  inspection  to  the  authorities  at  all 
reasonable  times.  Also,  annually,  a  statistical  report  of  operation 
must  be  made  out  and  sent  to  the  Chief  of  the  Bureau  of 
Mines. 

GOLD  COAST  AND  ASHANTI 

(Law  of  1900,  amended  to  date  of  January  1st,  1917) 

Mineral  rights  of  all  kinds  in  this  part  of  the  British  Empire 
are  vested  in  the  native  chiefs,  without  whose  consent  no  mining 
privileges  are,  obtainable,  but  whose  power  to  confer  such  fran- 
chises must  be  ratified  by  the  local  colonial  government. 

Prospecting  is  not  free.  A  license  is  required,  for  which 
application  is  made  to  the  Governor  through  the  Secretary  of 
State,  who,  if  approving  it,  forwards  the  papers  to  the  Resident 
of  Komasi,  the  capital.  The  latter  also  may  approve  or  decline 
at  discretion.  If  he  adopts  the  former  course  the  local  native 
chief  of  the  region  in  which  the  applicant  desires  to  prospect 
is  notified,  and  requested  to  afford  facilities.  The  cost  of  the 
document  is  £10.  It  grants  no  exclusive  rights,  and  is  good  for 
three  months  only,  but  is  indefinitely  renewable — at  the  option  of 
the  Resident — at  the  same  price  and  terms.  It  permits  surface 
inspection  and  exploration  only,  but  the  holder  may  take  away 
such  samples  and  specimens  as  may  be  necessary  to  test  or  display 
values,  provided  all  such  material  is  declared  to  the  Resident, 
and  also  the  place  or  places  from  which  they  were  taken  correctly 
described. 

The  holder  of  such  a  license  having  made  a  discovery  of  impor- 
tance which  he  desires  to  operate,  has  the  right  then  to  negotiate 
with  the  local  native  chief  for  an  exclusive  area  and  for  mining 
privileges  thereon.  When  these  negotiations  are  complete  the 
applicant  and  the  chief  appear  before  the  Resident  at  the  capital, 


MISCELLANEOUS  MINING  LAWS  271 

and  all  terms  of  the  bargain  are  considered  by  the  latter,  and, 
if  necessary,  modified  until  satisfactory.  The  agreement  is  then 
reduced  to  writing  and  signed  by  all  three  parties.  No  conces- 
sion may  exceed  five  square  miles  in  area,  or  have  a  term  greater 
than  99  years.  The  annual  rental  and  royalty  decided  upon  are 
payable  to  the  chief  through  the  colonial  Treasurer. 

All  concessions  must  finally  be  examined  and  ratified  by  the 
High  Court  of  the  colony,  and  before  becoming  valid  must  be 
advertised  in  the  government  Gazette  and  registered.  All 
expenses,  including  survey,  are  at  the  cost  of  the  applicant. 

There  is  no  limit  to  the  number  of  concessions  which  an  indi- 
vidual or  corporation  may  apply  for  and  acquire,  except  that 
the  combined  area  of  the  same  at  any  one  time  must  not  exceed 
20  square  miles.  After  registration  conveyancing  rights  are 
complete,  but  the  transfer  must  be  accomplished  through  the 
government  recording  office,  and  on  each  a  tax  of  £1  per  acre 
of  area — or  fraction  thereof — is  collected. 

In  addition  to  the  rentals  and  royalties  payable  to  the  local 
native  chief  or  chiefs,  a  royalty  of  5%  on  all  divided  profits  is 
payable  to  the  colonial  government. 

A  penalty  of  £50  is  imposed  on  anyone  found  prospecting 
without  a  license,  and  a  still  heavier  fine  for  attempting  to  nego- 
tiate with  a  native  or  a  native  chief  without  first  taking  out  such 
a  permit. 

Default  in  the  prompt,  compliance  with  any  of  the  terms  of  a 
concession  renders  the  holder  thereof  liable  to  a  fine  of  £5  per 
day  for  each  day  during  which  default  continues. 

HAITI 

(Law  of    December  10th,   1860,  amended  to  date  of    January  1st,   1917) 

For  the  purposes  of  the  law  all  mineral  substances  are  classified 
as  Mines,  Placers,  or  Quarries. 

Mines  include  those  substances  existing  underground  in  rock, 
in  the  form  of  veins,  beds  or  masses,  such  as  ores  of  the  metals, 
coal,  oil,  gas,  asphalt,  graphite,  rock  salt,  baryta,  fluorspar, 


272  INTERNATIONAL  MINING  LAW 

sulphur  and  other  analogous  minerals.  These,  whether  existing 
on  the  public  domain  or  on  alienated  land,  belong  to  the  Nation 
and  are  subject  to  appropriation  by  individuals  and  corporations 
under  the  provisions  of  the  law. 

Placers  are  deposits  of  metals  or  minerals  occurring  in  the 
surface  soil,  such  as  gold  or  tin-bearing  gravels,  bog  iron  ore 
and  ochres,  pyritiferous  and  aluminous  earths  and  analogous 
substances. 

Quarries  are  deposits  of  building  stone  of  all  kinds,  also  beds 
of  gypsum,  brick,  and  pottery  clay,  cement  rock,  chalk,  sand,  and 
phosphates. 

When  Placers  and  Quarries  exist  on  the  public  domain  they 
belong  to  the  Nation,  and  mining  rights  may  be  acquired  upon 
them  through  the  law.  But  when  occurring  on  alienated  land 
they  belong  to  the  surface  owner,  and  can  only  be  worked  with 
his  consent. 

Mines  and  Quarries  on  the  public  domain  may  be  worked  only 
under  the  provisions  of  a  grant  from  the  Secretary  of  State,  and 
under  rules  prescribed  by  the  Interior  Department.  When 
they  are  on  private  land  the  consent  of  the  owner  must  be 
obtained  or,  if  that  is  not  given,  authority  of  the  government 
coupled  with  provisions  for  a  satisfactory  indemnity  to  the 
surface  owner.  In  the  latter  case  the  applicant  for  mining 
privileges  is  required  not  only  to  prove  the  existence  of  a  mine, 
but  also  to  show  that  it  can  be  profitably  worked. 

Prospecting  is  free  to  aliens  as  well  as  to  citizens  of  the  Repub- 
lic, but  parties  conducting  exploratory  work  may  be  called  upon 
at  any  time  to  prove  that  they  are  financially  able  to  carry  it  on, 
and  also  to  respond  to  a  suit  for  damages.  Before  entering 
upon  alienated  land  the  owner  thereof  must  be  given  a  month's 
time  to  file  objections  to  the  application. 

The  law  provides  no  stated  area  for  mining  claims,  nor  pro- 
cedure for  making  locations.  All  such  matters  are  arranged  by 
direct  negotiations  with  the  authorities.  No  extralateral  rights 
are  allowed,  and  no  conveyancing  is  possible  without  the  consent 
of  the  authorities.  The  right  to  mine  for  one  substance  only  is 


MISCELLANEOUS  MINING  LAWS  273 

conveyed  by  a  permit.     If  others  are  found,  new  arrangements 
must  be  made. 

Titles  are  maintained  by  an  annual  rental  and  a  royalty  on  the 
gross  output,  and  the  amount  of  each  is  a  matter  of  negotiation. 
Fairly  continuous  work  is  expected,  and  when  the  area  under 
operation  is  on  alienated  land,  the  soil  owner  has  the  right  to 
claim  a  portion  of  the  output  to  be  previously  determined  by  the 
government,  but  not  less  than  5%.  The  normal  term  of  a 
mining  grant  is  one  year,  which,  on  the  public  domain,  will  be 
renewed  indefinitely  on  the  same  terms  as  granted.  If  on  private 
land  the  soil  owner  can  refuse  renewals,  in  which  case  the  miner 
has  the  right  to  purchase  at  double  the  normal  value. 

JAPAN 

(Law  of  1890  as  revised  in  1900) 

The  Nation  claims  the  exclusive  ownership  of  all  deposits  of 
gold,  silver,  copper,  lead,  bismuth,  tin,  antimony,  mercury, 
zinc,  iron,  manganese,  arsenic,  iron  sulphate,  chromic  iron, 
phosphates,  graphite,  coal,  lignite,  petroleum,  natural  gas, 
asphalt,  and  sulphur.  All  other  mineral  substances  belong  to 
the  owners  of  the  surface. 

There  being  practically  no  public  domain,  free  prospecting  is 
not  allowable,  excepting  upon  one's  own  land,  and  even  then  it 
must  be  confined  (so  far  as  nationally  owned  minerals  are 
concerned)  to  an  inspection  of  the  surface.  To  explore  to  a 
further  extent  a  prospecting  permit  is  required,  but  must  refer 
to  a  definitely  described  area.  Anyone  who  has  noticed  indica- 
tions of  the  existence  of  ores  of  any  of  the  substances  mentioned 
in  the  above  list,  and  who  desires  to  inaugurate  exploring  opera- 
tion thereon  must,  even  when  he  is  the  surface  owner  of  the  place, 
apply  to  the  authorities  (a  Bureau  of  the  Department  of  Agricul- 
ture and  Commerce)  for  a  permit,  giving  a  correct  description  of 
the  position  and  area  of  the  tract  desired.  If  he  is  the  first 
applicant  for  the  privilege  it  cannot  be  refused.  When  given, 
it  is  valid  for  one  year,  but  an  extension  of  the  term  is  allowable 


274  INTERNATIONAL  MINING  LAW 

under  certain  particular  conditions.  While  operating  under  this 
permit  the  explorer  may  realize  on  minerals  found  by  obtaining 
the  permission  of  the  authorities,  and  upon  the  payment  of  such 
rental  and  royalty  as  would  be  due  if  the  permit  under  which  he 
is  acting  was  one  for  mining.  If,  during  the  term  of  his  oc- 
cupancy, application  is  made  for  such  a  grant,  his  prior  right  to 
the  same  is  recognized.  Otherwise  it  is  given  to  the  first  appli- 
cant. Whoever  makes  the  application  is  required  to  demon- 
strate the  existence  of  the  mineral  which  is  the  object  of  the 
search,  within  the  boundaries  of  the  tract  asked  for. 

The  authorities,  however,  reserve  to  themselves,  under  the 
doctrine  of  eminent  domain,  the  right  to  refuse  the  issue  of 
prospecting  permits  and  mining  grants,  and,  without  the  right 
to  appeal  to  the  courts,  to  revoke  and  cancel  any  already  issued 
if,  in  their  opinion,  the  franchise  asked  for,  or  already  granted,  is 
considered  or  has  proved  to  be  " injurious  to  the  public  interest." 
To  date  this  reservation  of  autocratic  power  has  never  been 
exercised  unfairly  or  unusually,  so  far  as  can  be  ascertained. 

By  an  extension  of  this  doctrine  the  authorities  also  reserve  the 
right  to  direct  work  on  a  mining  grant  so  as  to  conform  to 
"necessary  public  interests."  Annually  a  general  approximate 
program  of  proposed  operations  must  be  submitted  for  approval, 
and  when  approved  must  be  executed  with  a  reasonable  degree 
of  approximation,  under  penalty  of  forfeiture  of  the  franchise. 
In  general  this  control  relates  only  to  matters  affecting  the 
comfort,  safety,  and  health  of  employees,  but  it  may  go  farther 
and  specify  the  maximum  and  minimum  tonnage  production, 
the  extent  of  new  development  required,  and  insist  on  other  pro- 
visions having  for  their  object  the  maintenance  of  the  property 
and  its  appurtenances  in  good  state  of  repair. 

Forfeiture  automatically  results  when  it  can  be  proven  that 
the  grant  was  obtained  by  fraudulent  representations  during 
application,  or  when,  to  improve  working  conditions,  changes  in 
the  boundaries  of  the  grant  are  made  and  the  grantee  refuses  to 
be  governed  by  the  change;  or  when  the  ground  rent  and  royalty 
are  not  paid  promptly  when  due. 


MISCELLANEOUS  MINING  LAWS  275 

The  areas  obtainable  for  prospecting  or  mining  purposes  in  the 
case  of  coal  cannot  exceed  about  500  acres,  nor  be  less  than  about 
8^  acres.  For  all  other  substances  the  size  is  about  25  acres.  In 
shape  all  mining  tracts  must  be  rectangular.  None  carry  any 
extralateral  rights.  But  if,  after  operating  some  time,  it  becomes 
apparent  that  the  ore  body  under  development  in  its  extension 
downward  is  liable  or  about  to  pass  beyond  planes  projected 
vertically  downward  through  any  of  the  surface  lines,  the  grantee 
can  ask  for  a  change  in  these  lines,  and  the  authorities  have  the 
power  to  make  the  change,  provided  the  request  is  in  their  opin- 
ion reasonable,  and  does  not  injuriously  affect  the  rights  of  others. 
Grants  of  both  kinds  must  be  registered,  after  which  conveyanc- 
ing rights  are  complete. 

On  all  areas  granted  for  prospecting  purposes  the  holder  thereof 
has  the  prior  right  to  apply  for  a  mining  grant,  provided  he  does 
so  before  his  term  expires. 

The  mining  grant,  when  issued,  is  of  the  nature  of  a  perpetual 
franchise,  at  the  option  of  the  holder,  incapable  of  annulment 
except  for  the  three  causes  above  specified,  or  under  the  doctrine 
of  eminent  domain.  Prospecting  and  mining  are  prohibited 
within  a  distance  of  about  1650  feet  from  cemeteries  or  military 
or  naval  reserves;  or  within  a  distance  of  about  175  feet  from 
public  monuments,  wagon  roads,  or  rail  roads,  lakes,  springs 
rivers  or  marshes,  except  by  special  permit. 

All  surface  operations  which  are  objected  to  by  the  owner  of 
the  soil  must  be  suspended  until  the  authorities  have  investigated 
the  circumstances,  and  either  allowed  them,  or  substituted  some 
suitable  modification;  or  the  surface  owner  can  be  compelled  to 
sell  his  rights  to  the  mining  operator,  or  grant  an  equitable  lease ; 
or,  finally,  the  operator  can  be  compelled  to  give  satisfactory 
security  for  possible  damages  or  injuries  to  the  premises  or  the 
business  of  the  soil  owner.  All  such  matters  must  be  referred  to 
the  authorities  for  arbitrament,  and  cannot  be  made  causes  of 
litigation  in  the  courts. 

Surface  owners  cannot  claim  any  interest  in  or  royalty  from  the 
production  of  any  of  the  metals  or  minerals  specified  at  the  begin- 


276  INTERNATIONAL  MINING  LAW 

ning  of  this  digest.  The  State,  however,  collects  two  kinds  of 
taxes  or  imposts,  first  a  fixed  annual  rental  of  about  35  cents  per 
acre,  and  second  a  royalty  of  1%  of  the  value  (at  the  nearest 
market)  of  the  output  in  any  and  all  forms,  excepting  in  the  case 
of  iron,  which  is  exempted  from  all  internal  duties  and  imposts. 

MYSORE  (BRITISH  INDIA) 

(Law  in  force  September  7th,  1916) 

The  ownership  of  all  precious  metals  and  stones,  and  of  all  other 
mineral  substances  except  granite,  limestone,  trap,  kankar, 
sandstone,  slate,  quartz,  laterite,  and  brick  clay,  wherever  found 
within  the  province,  either  upon  public  or  private  land,  is  abso- 
lutely vested  in  the  government  except  in  the  case  of  certain 
tracts  where  the  mineral  rights  have  been  expressly  granted 
to  surface  owners.  On  all  areas  so  controlled  the  search  for 
minerals  can  only  be  conducted  by  holders  of  licenses,  and  perma- 
nent mining  operations  by  holders  of  leases. 

The  government  issues  three  varieties  of  licenses  called  respec- 
tively Collecting,  Exploring,  and  Prospecting  Licenses. 

The  Collecting  License  applies  only  to  precious  stones  and  to 
the  mineral  corundum.  It  is  good  for  one  year  but  is  renewable 
for  additional  terms  of  the  same  length  at  the  discretion  of  the 
authorities.  It  conveys  the  right  to  search  for,  collect,  and  dis- 
pose of  gems  and  corundum  when  found  upon  or  within  such 
a  distance  from  the  surface  as  is  specified  in  the  document.  It 
covers  any  area  agreed  upon  between  the  applicant  and  the 
government  not  in  excess  of  that  political  subdivision  of  a  District 
which  is  called  a  taluk,  the  size  of  which  is  variable  but  roughly 
approaches  that  of  a  township  in  the  United  States.  The  fee 
on  application  is  $3.20.  In  addition  a  deposit  is  also  required 
of  an  amount  set  by  the  authorities  in  accordance  with  the  con- 
ditions existing,  which  may  vary  from  $10  to  $100.  It  confers 
no  exclusive  rights  but  allows  the  searcher  to  work  deposits 
found,  and  dispose  of  his  product  upon  payment  of  a  royalty 
of  $2.75  per  ton  of  2000  Ibs.  of  corundum  and  30%  of  the  net 


MISCELLANEOUS  MINING  LAWS  277 

profits  on  precious  stones.  These  licenses  are  not  transferable 
and  do  not  allow  explorations  on  ground  already  occupied  for 
mining  or  any  other  purpose,  and  the  searcher  must  apply  for 
a  permit  to  sell  his  product  before  putting  it  on  the  market. 

The  Exploring  License  conveys  the  right  (but  not  exclusive)  to 
search  for  minerals  of  all  kinds,  and  to  do  such  digging  and  make 
such  excavations  as  may  be  necessary  to  expose  and  remove 
any  small  quantities  of  substances  found  and  desired  for 
purely  experimental  or  testing  purposes,  but  with  no  right  to 
realize  upon  the  values  of  the  same.  Nor  does  it  give  any  pref- 
erential right  to  claim  a  lease  on  a  deposit  of  ore  found,  except 
such  as  may  be  recognized  at  the  option  of  the  authorities.  Its 
term  is  one  year,  with  no  renewal  right.  But  a  new  license  may 
be  granted  if  the  government  is  disposed  to  do  so.  The  maximum 
area  allowable  is  that  of  a  political  District,  which  may  be  likened 
to  that  of  a  county  in  the  United  States.  The  fee  on  appli- 
cation is  $3.20.  No  deposit  or  surface  rent  is  asked,  and  the 
government  reserves  the  right  to  reject  any  application  without 
cause,  to  limit  the  area  as  it  may  see  fit,  and  also  to  confine  its 
validity  to  any  one  or  more  minerals  that  it  may  select.  This 
form  of  license  is  not  transferable.  If  any  precious  stones  are 
found  the  fact  must  be  reported  within  ten  days,  the  stones 
exhibited  to  the  authorities,  and  a  royalty  of  15%  ad  valorem 
paid  upon  realization. 

The  Prospecting  License  conveys  full  and  exclusive  mining 
and  selling  rights  within  the  area  it  covers,  and  for  the  mineral 
or  minerals  specified  in  the  document;  and  also  the  right  within 
its  term  or  extensions  to  select  a  tract  not  exceeding  one  square 
mile  in  size,  and  to  call  for  a  lease  on  the  same.  Its  term  is  one 
year  which,  at  the  discretion  of  the  authorities,  may  be  renewed 
from  year  to  year  until  in  their  opinion  the  holder  has  had  suffi- 
cient time  to  make  the  selection  with  intelligence.  The  area 
covered  by  the  license  may  not  exceed  ten  square  miles  and 
should  be  as  nearly  a  rectangle  in  form  as  possible,  whose  length 
is  not  more  than  twice  its  breadth.  The  fee  on  application  is 
$3.20  per  square  mile  (or  fraction  thereof)  of  area  included,  in 


278  INTERNATIONAL  MINING  LAW 

addition  to  which  a  deposit  of  $32  per  square  mile  is  required, 
and  a  surface  rental  ranging  from  two  cents  to  16  cents  per  acre 
per  annum,  according  to  the  discretion  of  the  authorities.  The 
royalties  on  substances  disposed  of  are  as  follows: 

On  gold  and  silver.  No  royalty  is  taken  until  operations  show 
a  net  profit;  thereafter  5%  per  annum  of  the  gross  sale  value  of 
the  products,  plus  5%  per  annum  for  each  $125,000  of  net  yearly 
profits  divided. 

On  all  other  substances  except  corundum  and  precious  stones, 
5%  of  the  selling  value  at  the  mine. 

On  corundum,  $2.75  per  ton  of  2000  Ibs. 

On  precious  stones,  30%  of  the  net  annual  profits. 

Claimants  under  prospecting  licenses  may  not  use  the  timber 
on  the  surface  without  a  government  permit,  but  may  erect 
such  buildings  and  sheds  as  are  required  for  economical  temporary 
operations,  and  construct  such  roads  and  trails  as  may  be  neces- 
sary to  secure  access  to  their  premises. 

Leases.  The  maximum  term  of  a  mining  lease  is  30  years,  with 
one  renewal  of  equal  length  at  the  option  of  the  authorities,  and 
on  such  new  terms  as  they  may  prescribe.  Its  area  cannot  exceed 
one  square  mile  laid  out  in  rectangular  shape,  with  length  not 
greater  than  four  times  its  breadth.  In  the  case  of  alluvial 
deposits  of  precious  stones  or  of  any  of  the  metals,  the  govern- 
ment reserves  the  right  to  limit  both  the  area  and  shape  in 
accordance  with  its  own  views  of  the  necessities  of  each  case. 
The  fee  on  application  is  $32,  and  a  deposit  of  $320  is  also 
demanded.  The  surface  rental  is  32  cents  per  acre  per  annum. 
The  royalties  are  the  same  as  in  the  case  of  minerals  sold  under 
prospecting  licenses.  In  addition  to  these  charges  the  authori- 
ties reserve  the  right  to  levy  an  impost  called  a  "dead  rent" 
wherever  a  leased  property  is  not  being  operated  as  energetically 
or  skillfully  as,  in  their  opinion,  it  should  be.  This  may  be  as 
much  as,  but  not  more  than,  $1.60  per  acre  per  annum.  But  it 
can  be  levied  only  when  the  royalty  paid  for  any  one  year  is 
less  than  what  the  dead  rental  would  be  at  its  maximum  rate. 

All  expenses  connected  with  the  issuing  of  a  mining  lease,  such 


MISCELLANEOUS  MINING  LAWS  279 

as  surveys,  examination  of  title  to  the  tract  asked  for,  maps, 
etc.,  must  be  paid  for  upon  delivery  of  the  document,  leaving 
the  deposit  of  $320  as  security  for  the  prompt  and  accurate 
performance  of  the  terms  of  the  grant.  There  is  finally  a  stamp 
tax  to  be  paid  upon  the  document  itself,  and  a  registration  fee. 
Leases  may  be  sold  or  encumbered  upon  obtaining  the  consent 
of  the  authorities,  the  payment  of  the  transfer  fee,  and  the 
registration  of  the  document  of  conveyance.  But  the  govern- 
ment reserves  the  right  to  refuse  its  consent,  without  cause. 
Operations  must  begin  in  earnest  within  a  year  from  date  of 
grant,  and  thereafter  be  continuous.  All  boundary  monuments 
must  be  kept  in  repair.  If  the  lease  is  on  alienated  land  arrange- 
ments must  be  made  with  the  owner  thereof  for  all  surface 
privileges  required,  but  if  harsh  terms  are  asked  the  authorities 
on  request  will  initiate  expropriation  proceedings  in  the  courts. 
Complete  accounts  and  working  maps  must  be  maintained. 

NIGERIA 

(Law  of  March  31st,  1916) 

In  this  British  colony  the  government  claims  the  exclusive 
ownership  of  mineral  substances  of  all  kinds,  and  wherever 
found  within  its  borders;  and,  for  the  purposes  of  the  law  classi- 
fies them  as  Alluvials,  Lodes  and  Minerals.  The  last  is  again 
divided  into  Metalliferous  Minerals,  Carbonaceous  Minerals, 
Earthy  Minerals  and  Precious  Minerals.  In  the  final  division 
are  precious  stones  and  the  metals  gold,  silver,  platinum  and 
iridium. 

Prospecting  Is  Not  Free.  A  license  is  required,  and  a  penalty 
of  $500  or  12  months'  imprisonment  is  prescribed  for  any  one  at- 
tempting to  add  to  the  mineral  wealth  of  the  country  without 
formal  permission,  together  with  confiscation  of  all  material 
obtained.  Natives  however  are  freely  permitted  to  explore  for 
and  appropriate  to  their  own  use  iron  ore,  salt,  soda  and  potash, 
when  found  on  unoccupied  land. 

Two  forms  of  exploring  permits  are  issued,  called  respectively 

19 


280  INTERNATIONAL  MINING  LAW 

" Prospecting  Rights"  and  " Exclusive  Prospecting  Licenses." 
The  first  may  be  taken  out  by  any  individual — citizen,  alien  or 
native — who  is  over  18  years  of  age,  can  read,  is  of  good  character 
and  can  furnish  satisfactory  proof  to  the  authorities  that  he  can 
command  sufficient  capital  or  credit  to  carry  on  exploring  work 
properly,  and  to  respond  to  claim  for  damages  that  may  accrue 
as  the  result  of  his  operations.  But  the  right  is  reserved  by  the 
Government  to  prohibit  the  search  for  any  specified  mineral  at 
any  time,  by  advertisement  in  the  Official  Gazette,  which  pro- 
hibition, when  exercised,  applies  not  only  to  " Rights"  issued 
thereafter,  but  also  to  all  those  at  the  time  in  force. 

These  "  Rights"  are  good  for  one  year  from  date  of  issue,  cost 
$25.00,  are  not  transferable  or  renewable,  and  convey  no  permis- 
sion to  remove  and  realize  upon  any  material  found.  They  confer 
the  right  to  explore  upon  unoccupied  public  land  and  privately 
owned  property,  excepting  in  the  first  instance  upon  areas  closed 
by  official  proclamation  or  included  in  an  exclusive  prospecting 
area,  or  has  been  declared  a  forest  reserve.  In  the  last  case  per- 
mission to  prospect  may  be  obtainable  from  the  local  forest  officer, 
upon  proper  guarantees.  Each  employee  or  partner  of  a  pros- 
pector must  also  possess  a  "Right." 

The  "Exclusive  Prospecting  License"  is  granted  only  to  one 
who  has  first  taken  out  a  "Prospecting  Right,"  and  who  has 
either  personally  or  by  an  employee  conducted  exploring  work 
upon  the  area  asked  for.  The  maximum  tract  allowable  is 
sixteen  square  miles,  but  when  the  search  is  for  precious  metals 
or  stones  it  may  not  exceed  one  square  mile  in  area.  The  permit 
is  good  for  one  year  and  is  renewable — at  the  option  of  the  au- 
thorities— for  three  additional  years  in  the  case  of  an  alluvial 
deposit,  and  for  six  in  the  case  of  lodes.  The  cost  is  $25.00  per 
square  mile  of  area  per  annum,  payable  in  advance,  plus  all  costs 
connected  with  the  necessary  surveying  and  mapping.  The  ap- 
plicant is  also  again  required  to  give  proof  that  he  has  sufficient 
capital  at  his  command  to  carry  on  work  properly,  and  to  respond 
to  any  damages  that  may  result  to  private  or  government  inter- 
ests. Such  a  license  confers  exclusive  exploring  privileges  within 


MISCELLANEOUS  MINING  LAWS  281 

the  area  granted,  for  the  holder  and  his  employees,  provided  the 
work  is  prosecuted  continuously  and  to  the  satisfaction  of  the 
authorities,  but  does  not  allow  of  the  removal  or  sale  of  material 
found,  except  of  small  quantities  for  testing  purposes. 

When  an  alluvial  deposit  has  been  found  by  the  holder  of  a 
prospecting  license  or  right,  and  it  is  desired  to  operate  thereon, 
the  discoverer  must  apply  for  what  is  called  a  "  Mining  Right." 
This  may  or  may  not  be  granted,  the  authorities  having  full  dis- 
cretionary powers  in  the  matter.  If  granted,  it  is  good  for  one 
year,  and  is  renewable  from  year  to  year  thereafter  at  the  option 
of  the  Governor.  The  maximum  area  allowable  is  one  mile  in 
length  of  the  bed  or  channel  of  the  stream,  by  one  hundred  yards 
on  each  side  of  its  center  line.  No  survey  is  required,  but  the 
claimant  must  carefully  stake  all  corners.  A  rental  of  $5.00  per 
annum  for  each  one  hundred  yards  of  the  length  of  the  claim  is 
payable  in  advance.  On  the  product  royalties  range  from  2J-^ 
%  to  7^  %  on  tin  ores,  are  $1.00  per  ounce  on  gold,  and  on  the 
other  precious  metals  5  %  ad  valorem.  The  conditions  of  main- 
tenance are  "  continuous  and  adequate  operation."  At  any  time 
during  its  term  the  government  has  the  right  to  revoke  the  fran- 
chise upon  30  days'  notice,  in  whole  or  in  part,  in  which  event  the 
holder  has  a  preferential  claim  for  a  lease  on  the  area  revoked, 
and  for  a  new  mining  right  on  the  balance. 

For  all  other  varieties  of  mining  operations  Leases  must  be 
taken  out.  The  maximum  term  permissible  is  21  years,  with  a 
claim  for  one  renewal  of  an  equal  length  if  the  holder  has  been 
operating  to  the  satisfaction  of  the  Department  of  Mines,  and 
can  give  proof  that  he  is  capable  of  continuing  to  do  so.  Be- 
yond this  no  further  extension  can  be  obtained.  Leases  may  be 
sold  or  assigned  with  the  consent  of  the  authorities,  and  on  pay- 
ment of  a  transfer  fee.  They  may  also  be  surrendered  after 
giving  six  months'  notice  of  the  intent,  the  settlement  of  all  legal 
claims  which  may  exist  at  the  date  of  abandonment,  and  the  pay- 
ment of  a  surrender  fee. 

The  holder  of  a  mining  Lease  has  full  right  to  remove  and  sell 
all  minerals  found  and  produced  during  its  term. 


282  INTERNATIONAL  MINING  LAW 

Leases  are  of  five  different  kinds,  as  follows: 

A.  Metalliferous  Minerals  and  Precious  Metal  Lode  Leases. 
These  can  embrace  an  area  not  less  than  five  and  not  more  than 
fifty  acres.     The  annual  rental  is  about  $2.50  per  acre,  and  the 
holder  may  work  and  own  any  alluvial  deposits  on  his  area. 

B.  Metalliferous    Minerals    and    Precious    Metals    Alluvial 
Leases.     The  area  of  these  may  be  from  five  to  eight  hundred 
acres,  according  to  the  nature  of  the  deposit,  its  topographical 
features  and  the  methods  of  operation  that  must  be  adopted. 
The  rental  is  about  $1.25  per  acre.     This  form  of  lease  confers 
the  right  to  work  only  in  the  surface  soil  or  debris. 

C.  Precious  Stone  Leases. 

D.  Carbonaceous  Minerals  Leases. 

E.  Earthy  Mineral  Leases. 

For  these  three  classes  the  areas  obtainable,  the  terms  and  the 
surface  rentals  are  (within  certain  limits)  matters  of  negotiation 
between  applicants  and  the  authorities. 

Royalties  are  payable  on  all  minerals  and  metals  produced  and 
sold  as  follows:  On  tin  products,  from  2%  to  7J^%  according 
to  the  current  price  in  London.  On  lead  products,  2%  to  5% 
ad  valorem  according  to  the  silver  contents.  On  iron  products 
1%  ad  valorem.  On  gold,  $1.00  per  fine  ounce.  On  other 
precious  metals,  5%  ad  valorem.  On  all  other  minerals  and  me- 
tallic products  such  rates  as  may  be  agreed  upon  between  the 
authorities  and  the  producers,  or  as  may  be  fixed  by  future 
Regulations. 

The  shape  of  all  leases  must  be  either  rectangles  or  polygons. 
In  the  former  case  the  width  must  not  be  less  than  200  yards.  In 
the  latter  there  must  be  at  least  four  sides  and  not  more  than  ten. 
In  all  cases  the  boundaries  underground  are  vertical  planes  pass- 
ing through  the  sides.  Lessees  have  the  right  to  work  for  and 
realize  upon  only  such  substances  as  are  specified  in  the  document. 
If  others  are  found  and  it  is  desired  to  produce  them,  the  authori- 
ties must  be  notified  and  the  lessees  must  accept  such  regula- 
tions for  their  recovery  and  disposition  as  may  be  decreed  by  the 
Governor  acting  under  the  advice  of  the  Department  of  Mines. 


MISCELLANEOUS  MINING  LAWS  283 

Maintenance  depends  upon  practically  continuous  work  with  a 
force  of  not  less  than  five  laborers  for  every  two  acres  in  the  tract 
in  the  case  of  a  lode  property,  and  the  same  number  for  every 
twenty  acres  in  the  case  of  placers.  When  operating  on  alien- 
ated land  a  royalty  or  rental  for  surface  areas  used  can  be 
claimed  by  the  surface  owner.  The  amount  of  this  is  largely  a 
matter  of  negotiation,  but  the  authorities  reserve  the  right  to 
insist  upon  its  reasonableness  according  to  their  views  in  such 
matters. 

SIAM 

(Law  of  1901,  with  amendments  to  Jan.  1st,  1917) 

The  government  claims  the  exclusive  ownership  of  all  mineral 
substances,  upon,  in  or  under  the  surface,  and  whether  existing 
on  the  public  domain  or  on  privately  owned  land. 

Prospecting  upon. alienated  land  by  the  owner  thereof  is  free 
for  a  term  of  ninety  days,  at  the  expiry  of  which — if  it  is  desired 
to  continue  operations — a  lease  must  be  taken  out.  During  the 
exploring  term  no  mineral  can  be  removed  from  the  immediate 
vicinity  of  the  place  where  it  was  found. 

When  a  discovery  of  any  desirable  mineral  substance  is  made  in 
the  surface  soil  by  anyone  other  than  the  surface  owner,  and  it  is 
desired  to  operate  thereon,  application  must  be  made  for  a  Mineral 
Washing  License,  which  can  be  obtained  at  moderate  cost,  is 
good  for  one  year  and  is  renewable  thereafter  indefinitely  at  the 
option  of  the  government  at  the  same  cost.  It  is  not  transferable. 

General  Prospecting  Is  Not  Free.  Licenses  are  required.  These 
tare  issued  at  small  cost,  are  good  for  a  year  and  cover  an  agreed 
Wea  (generally  one  of  the  small  political  divisions).  They  are 
not  exclusive,  but  confer  the  right  to  prospect  over  all  parts  of 
the  region  not  already  occupied  by  other  prospectors  or  miners, 
and  not  in  actual  use  for  buildings,  crops  and  fenced  pastures. 
They  are  renewable  from  year  to  year  at  the  option  of  the  authori- 
ties, are  not  transferable,  do  not  confer  the  right  to  remove  or 
sell  any  mineral  found  and  are  good  only  for  the  individual  to 


284  INTERNATIONAL  MINING  LAW 

whom  they  are  issued.  Additional  licenses  must  be  taken  out 
for  partners  or  assistants  employed. 

An  exclusive  prospecting  license  is  also  obtainable,  good  for 
one  year  and  renewable  once  at  the  option  of  the  authorities.  The 
ground  desired — which  cannot  exceed  about  1000  acres — must 
first  be  staked  out.  The  applicant  then  presents  a  sketch  plan 
to  the  chief  local  authority,  together  with  the  prescribed  fee  and  a 
deposit  in  addition  to  cover  the  costs  of  identification,  etc.,  and  in 
due  time  if  the  applicant  is  considered  to  be  a  desirable  party  and 
the  area  is  vacant  the  license  may  be  issued.  It  conveys  full 
exploring  rights  to  the  holder  with  the  privilege  of  employing 
as  many  assistants  as  desired  without  any  additional  licenses, 
but  confers  no  right  to  remove  or  realize  upon  any  mineral  found. 

For  Permanent  Operation  A  Lease  Is  Necessary.  Application 
must  be  made  in  writing  accompanied  with  a  sketch  plan  of  the 
ground  desired,  the  prescribed  fee  and  a  sample  of  the  mineral 
or  minerals  found  and  which  it  is  expected  to  operate  for.  The 
applicant  must  give  satisfactory  proof  of  his  technical  ability  to 
conduct  mining  operations  in  good  style  (or  name  a  Manager 
with  those  qualifications)  and  must  show  that  he  can  command 
sufficient  capital.  If  the  lease  is  granted,  all  its  terms  are  matters 
of  negotiation  between  the  government  and  himself.  A  ground 
rental  is  charged  which  is  payable  semi-annually  in  advance. 
Royalties  in  varying  amounts  are  payable  on  all  material  sold. 
Areas  may  not  exceed  about  33  acres  for  a  lode  claim  and  about 
100  acres  for  a  placer  or  coal  claim.  Each  tract  must  be  rectan- 
gular in  shape,  orientated  and  with  length  not  in  excess  of  three 
times  its  width.  A  survey  by  a  government  engineer  at  the  cost 
of  the  applicant  is  obligatory,  and  all  monuments  set  during  this 
operation  must  be  maintained  in  good  order.  Maintenance  of  the 
franchise  from  year  to  year  thereafter  is  dependent  upon  conduct- 
ing operations  with  reasonable  energy  and  in  ways  satisfactory 
to  the  Department  of  Mines,  whose  constant  supervision  must 
be  acknowledged.  Within  six  months  after  the  abandonment  of  a 
lease  all  buildings,  machinery,  ore  or  other  property  must  be  re- 
moved, or  it  becomes  the  property  of  government.  Leases  may 


MISCELLANEOUS  MINING  LAWS  285 

he  transferred,  but  only  with  the  consent  of  the  authorities,  and 
upon  the  payment  of  a  stated  transfer  fee. 

BRITISH  NORTH  BORNEO 

The  government  claims  the  exclusive  ownership  of  all  minerals, 
whether  found  on  or  below  the  surface,  and  prohibits  the  search 
for  them  except  by  holders  of  a  government  license,  under  penalty 
of  $500  or  six  months'  imprisonment.  No  form  of  title  exists  for 
mining  property  except  that  of  a  lease. 

Licenses  to  prospect  and  leases  to  operate  may  be  obtained 
from  the  authorities  at  Sandakan,  the  capital,  and  on  generally 
reasonable  and  fair  terms.  They  are  largely  matters  of  negotia- 
tion excepting  in  a  few  fundamentals,  which  are  substantially 
those  of  the  British  India  law. 


CHAPTER  XIII 
THE  PROSPECTOR 

A  mining  law  has  for  its  purpose  the  attainment  of  two  ends, 
namely,  to  secure  the  discovery  of  mineral  deposits,  and  to  en- 
courage and  govern  their  development  and  operation.  The 
first  has  to  do  with  the  occupation  of  prospecting,  while  the  second 
is  a  matter  of  capital  arid  mining  engineering.  As  mines  cannot 
be  worked  until  they  are  discovered,  it  seems  clear  that  the 
paramount  object  of  a  law  of  this  class  must  be  to  stimulate  the 
business  of  the  prospector. 

This  individual,  as  known  in  America,  may  be  said  to  be  en- 
tirely a  product  of  its  peculiar  civilization.  In  dictionaries  of  the 
English  language  published  prior  to  the  year  1850  the  word  is 
not  to  be  found.  It  seems  to  have  become  current  first  about  the 
years  1845-50,  when,  lead  ore  having  been  discovered  at  Galena, 
Illinois,  a  number  of  the  pioneers  of  the  vicinity  began  to  search 
the  surrounding  country  for  more  of  the  mineral.  These  indi- 
viduals appear  to  have  been  called  "  prospectors  "  by  a  writer  of 
the  day.  *  Shortly  thereafter  the  gold  discoveries  in  California 
were  announced,  which  naturally  drew  all  such  characters  to 
the  Coast,  where  their  line  of  activity  was  at  once  recognized  as 
desirable,  and  the  title  appropriate.  The  idea  back  of  it  was  a 
totally  new  one  to  the  world,  for  it  meant  an  individual  who  had 
been  invited  by  the  natiott  to  explore  the  surface  of  the  public 
domain  for  indications  of  mineral  values  of  any  kind.  These, 
when  found,  if  not  on  land  already  appropriated  by  another, 
became  by  the  miner's  law  the  exclusive  property  of  the  finder, 
to  work  or  to  sell  as  he  saw  fit.  In  a  short  time  the  occupation 
became  entirely  one  of  searching  and  finding,  the  idea  of  develop- 

286 


THE  PROSPECTOR  287 

ment  being  quite  abandoned,  so  much  so  that  the  prospector 
ranked  himself  as  above  the  status  of  the  miner,  and  took  more 
or  less  pride  in  the  distinction.  This  professional  feeling  con- 
tinued, and  still  persists,  although  at  the  present  time  some  of  the 
craft  are  too  lazy  to  be  efficient  explorers.  In  the  beginning, 
however,  the  occupation  was  chosen  and  followed  by  men  of  real 
pioneering  ability,  although  sometimes  very  illiterate,  and  in  all 
parts  of  the  western  mining  districts  of  the  United  States,  and  in 
Alaska,  there  still  remain  numerous  vigorous,  honest,  and  capable 
individuals  of  the  class. 

Outside  of  the  United  States  and  Alaska  the  prospector,  as  so 
understood,  does  not  exist.  This  statement  can  be  made  without 
reservation.  The  occupation  is  unknown  in  Latin  America  and 
in  South  Africa.  There  were  hundreds  of  them  at  one  time  in 
British  Columbia,  but  they  have  disappeared  from  that  richly 
mineralized  section  of  Canada.  In  the  Yukon  country  they 
were  present  in  large  numbers  when  the  Klondyke  district  was 
thought  to  be  a  part  of  Alaska,  but  they  left  when  that  famous 
region  proved  to  be  British  territory.  In  all  the  remaining  parts 
of  Canada  the  prospector  is  notable  by  his  absence.  The  business 
has  never  been  heard  of  in  Siberia.  In  Australia,  Tasmania,  and 
New  Zealand,  although  many  were  in  the  field  in  the  early  days, 
none  can  be  found  now. 

The  further  statement  can  also  be  made  with  confidence  that 
prospectors  exist  only  in  those  parts  of  the  United  States  that  are 
under  the  provisions  of  the  Federal  mining  law.  For  instance, 
though  numerous  in  New  Mexico,  they  cannot  be  found  in  the 
adjoining  State  of  Texas,  although  the  latter  is  known  to  possess 
great  mineral  resources.  There  are  none  in  the  Lake  Superior 
copper  and  iron  mining  regions,  nor  in  the  zinc  and  lead  fields  of 
the  Mississippi  valley. 

The  natural  inference  from  these  statements,  if  they  cannot  be 
controverted,  is  that  the  .prospector  is  the  child  and  product  of 
the  Federal  mining  law.  If  he  is  a  desirable  one  it  will  be  well 
worth  while  to  ascertain  what  there  is  in  that  law  that  has  pro- 
duced him,  and  keeps  him  after  nearly  70  years  of  activity,  still 


288  INTERNATIONAL. MINING  LAW 

» 

a  figure  of  importance  and  value.  Can  discovery  proceed  with- 
out his  services? 

To  a  very  limited  extent  discovery  is  in  progress  in  British 
Australasia,  but  is  practically  at  a  standstill.  In  Latin  America 
and  Canada  identical  conditions  exist.  We  hear  of  little  from 
all  these  regions  except  the  continued  working  of  mines  discovered 
30  to  50  years  ago,  or  the  reopening  of  "antiguas."  In  the  case 
of  Canada  a  few  new  and  important  mineral  districts  have  been 
found  during  recent  years,  but  investigation  reveals  the  fact  that 
all  of  them  were  purely  accidental  strikes,  made  either  by  raiL- 
road  graders  in  the  course  of  their  day's  labor  (Sudbury  and 
Cobalt),  or  by  sportsmen  when  in  the  pursuit  of  game  (Porcu- 
pine). Practically  nothing  new  has  been  found  in  British 
Columbia  since  its  law  was  changed  in  1897.  In  Texas,  though 
the  State  is  offering  liberal  bounties  for  new  discoveries,  none  are 
reported.  Prospectors  by  the  thousands  are  swarming  all  over 
Alaska,  in  spite  of  its  severe  climate,  while  across  the  line  in  the 
Yukon  Territory  of  Canada  no  exploration  is  in  progress.  In 
fine,  a  careful  examination  of  international  conditions  in  the 
business  of  metal  mining  shows  that  in  the  matter  of  new  dis- 
coveries the  western  United  States  and  Alaska  are  the  only  parts 
of  the  world  where  advance  has  been  steady  and  important  from 
the  first  and  still  continues  to  be.  Evidently  therefore  the 
American  prospector  is  an  asset  of  some  importance  and  value 
to  the  nation. 

What  then  does  the  prospector  require  as  an  inducement  to 
carry  on  his  peculiar  line  of  activity  with  energy?  First  he 
appears  to  demand  freedom  in  its  exercise.  He  carefully  avoids 
all  lands  where  a  license  is  required,  and  those  where  the  proc- 
esses of  initiating  and  maintaining  a  title  are  complicated  and 
expensive,  and  where  no  fee  simple  title  is  obtainable.  But 
above  all  other  circumstances  that  which  seems  to  be  most  neces- 
sary to  retam  his  services  is  the  ability  to  locate  a  claim  which 
has  a  sellingValue  as  a  prospect,  and  which  does  not  have  to  be 
developed  to  attain  that  quality.  For  he  is  not  a  developer.  He 
is  purely  an  explorer  and  finder,  and  cannot  make  a  living  in  his 


THE  PROSPECTOR  289 

profession  unless  he  can  dispose  of  his  find  on  the  basis  of  the 
nature  of  the  claim  he  can  record  and  maintain  upon  it.  Such 
a  nature  seems  to  have  been  unconsciously  conferred  by  the 
American  Federal  mining  law  when  the  doctrine  of  the  apex  and 
of  extralateral  rights  for  lode  claims  was  incorporated  in  it  when 
it  was  framed  by  the  miners  themselves.  For  this  doctrine 
makes  the  vein  or  deposit  the  legal  entity  granted,  while  the 
surface  tract  is  regarded  merely  as  an  appendage  thereto,  and 
gives  the  former  to  its  discoverer  in  its  entirety  no  matter  where 
it  may  lead  him.  With  this  right  assured  it  is  not  possible  to 
locate  along  his  side  line  and  cut  him  off  on  the  dip,  nor  is  he 
compelled  to  go  to  the  expense  of  locating  a  number  of  claims 
alongside  of  each  other  to  protect  himself.  Hence,  when  he  has 
found  something  of  value  he  can  command  a  fair  price  for  it, 
for  his  title  covers  whatever  there  may  be  of  it  within  his  end 
lines  and  within  the  limits  of  practical  mining  operations. 

There  are  some  who  hold  that  the  price  paid  for  his  services  in 
the  form  of  vexatious  litigation  due  to  the  unbusinesslike  habits 
and  careless  way  of  the  average  individual  of  the  class  is  out  of  all 
proportion  to  the  results  realized  from  his  undeniable  pioneering 
ability.  This  view  does  not  seem  to  be  warranted  by  the  facts 
in  the  case.  Nor  does  it  appear  at  all  likely  that  the  future  will 
bring  any  recurrence  of  the  turbulent  days  of  old.  For  the  mod- 
ern American  prospector,  while  retaining  the  most  of  his  desir- 
able characteristics,  is  not  only  a  peaceful  but  a  comparatively 
well  educated  individual,  fairly  posted  in  the  requirements  of  the 
mining  law  as  now  interpreted  by  the  courts,  much  more  careful 
than  his  predecessors  in  carrying  out  their  provisions,  and  gener- 
ally a  respected  member  of  the  community  in  which  he  operates. 
This  change  is  well  displayed  by  the  comparative  quiet  that  reigns 
in  Alaska,  where  at  present  his  activities  are  most  in  evidence. 

There  are  others  who  assert  that  the  apex  and  extralateral 
rights  doctrine  is  inherently  a  fallacy,  and  never  can  be  made  to 
square  *with  those  basic  and  settled  principles  of  jurisprudence 
that  have  to  do  with  the  matter  of  real  estate  titles.  This  may 
be  so,  but  if  it  is,  it  is  not  the  only  fact  or  condition  in  the  life  of 


290  INTERNATIONAL  MINING  LAW 

today  that  is  at  variance  with  the  foundations  upon  which  the 
structure  of  modern  law  has  been  so  painfully  erected.  It  must 
be  recognized  that  the  mining  industry  is  a  very  new  line  of 
human  activity,  and  is  still  in  a  formative  state.  We  know 
comparatively  little  about  the  crust  of  the  earth.  Yet  added 
knowledge  of  its  contents  is  clearly  desirable  from  every  point 
of  view.  How  ^absurd  therefore  to  impose  the  handicap  and 
stigma  of  a  license  on  the  activity  of  those  comparatively  few 
individuals  whose  curiosity  and  optimism  incline  them  to  attempt 
to  explore  underground  in  ways  and  by  acts  which  have  come  to 
be  regarded  as  unwarranted  if  practised  by  other  surface  owners. 
If  his  methods  are  repugnant  to  the  principles  of  the  law,  then 
perhaps  it  may  be  better  for  the  general  good  that  the  law  should 
change  its  aspect  and  point  of  view  in  this  matter,  than  that  «the 
prospector  should  be  compelled  to  abandon  his  useful,  if  at 
times  most  inconvenient,  activity. 


CHAPTER  XIV 

EXTRALATERAL    RlGHTS 

Before  considering  the  doctrine  of  extralateral  rights  in  lode 
mining  property  on  its  merits,  it  will  be  both  interesting  and 
advantageous  to  study  its  history.  For  it  is  a  doctrine  of  con- 
siderable respectability,  if.  the  matter  of  age  alone  confers  that 
quality.  It  did  not  originate  in  the  United  States,  as  some  have 
supposed.  It  was  in  operation  as  a  well  recognized  and  just 
principle  in  mining  practice  when  Agricola  published  his  famous 
work  on  mining  in  1530,  and  apparently  had  been  so  for  many 
centuries  before  that  date.  It  was  applied  however,  in  those 
days,  and  in  the  German  mining  districts,  only  to  that  class  of 
mineral  deposits  described  by  that  writer  as  a  "vena  profunda," 
by  which  he  meant  a  lode  that  had  a  well  defined  and  continuous 
dip  of  importance  into  the  earth;  in  short,  what  we  now  call — 
perhaps  rather  vaguely — a  fissure  vein.  In  all  other  classes 
of  mineral  deposits  beneath  the  surface,  which  were  summarized 
by  him  under  the  two  names  of  "vena  dilatata"  and  "vena 
cumulata,"  the  miner  was  strictly  confined  in  his  operations 
within  vertical  planes  extending  downward  from  his  surface 
boundaries.  Whether  the  doctrine  originated  in  Central  Europe, 
where  mining  had  been  in  progress  ever  since  the  beginning  of 
the  7th  century  of  our  era,  and  probably  for  several  hundred 
years  prior  to  that  date,  or  was  an  inheritance  from  Roman 
times,  it  is  impossible  to  say.  But  because  it  is  also  found  in  a 
somewhat  different  form  in  the  old  Spanish  mining  laws,  which 
certainly  came  down  from  Rome,  it  seems  probable  that  its 
root  was  in  the  laws  of  that  empire. 

"  In  Agricola's  time,  and  among  the  German  miners,  the  claim 
unit  was  called  a  "meer,"  and  consisted  of  a  piece  of  land  seven 

291 


292  INTERNATIONAL  MINING  LAW 

fathoms  square,  the  fathom  being  six  feet.  To  the  discoverer 
of  a  new  vein  seven  of  these  units,  laid  out  in  a  string  along  the 
outcroppings,  were  allotted,  as  a  reward.  Thus  his  claim  was  a 
rectangle  42  feet  wide  and  294  feet  long,  and  his  right  to  posses- 
sion depended  on  continuous  working  by  himself  or  a  man  in  his 
place  (except  a  total  of  68  days  throughout  the  year)  and  the  pay- 
ment of  one-tenth  of  his  product  of  ore  to  the  Overlord.  As  to 
his  underground  rights  I  can  perhaps  do  no  better  than  to  quote 
Agricola's  words  verbatim,  as  given  in  the  excellent  translation 
by  Hoover. 

"Of  the  width  of  every  meer,  whether  old  or  new,  one-half  lies  on  the 
foot  wall  side  of  the  "vena  profunda,"  and  one-half  on  the  hanging  wall 
side.  If  the  vein  descends  vertically  into  the  earth,  the  boundaries 
similarly  descend  vertically,  but  if  the  vein  inclines  the  boundaries 
likewise  will  be  inclined.  The  owner  always  holds  the  mining  right  for 
the  width  of  his  meer,  however  far  the  vein  descends  into  the  depths  of 
the  earth." 

Thus  it  will  be  seen  that  the  practice  in  central  Europe  differed 
from  the  American  doctrine  in  that  it  gave  the  miner  21  feet  of 
vein  and  of  country  rock  on  both  sides  of  the  center  of  his  vein 
at  all  points  in  its  depths,  whereas  the  American  law  confines 
the  miner  strictly  within  the  limits  of  his  vein  walls  after  it 
passes  beyond  the  vertical  plane  of  his  side  line. 

In  another  detail  also  the  two  doctrines  diverge,  and  as  some 
hold  that  the  American  system  was  copied  from  the  German,  it 
will  be  interesting  to  note  this  difference.  With  us  the  claim- 
holder  has  the  exclusive  right  in  depth  to  all  veins  the  top  or 
apex  of  which  lie  within  his  surface  lines.  But  in  the  German 
law  the  extralateral  right  of  pursuit  was  given  only  to  such 
of  them  as,  outcropping^within  his  surface  lines,  might  be  found  in 
due  time  to  unite  with  the  vein  upon  which  the  original  discovery 
was  made,  and  which  alone  was  presumed  to  be  given  to  its 
discoverer. 

It  does  not  appear  from  Agricola's  writings  that  the  doctrine 
produced  much  litigation.  Probably  this  was  due  to  the  fact 


EXTRALATERAL  RIGHTS  293 

that  all  the  mining  operations  of  his  day  were  conducted  under 
rules  and  regulations  prescribed  by  the  local  Overlord  or  his 
chief  functionary  for  the  industry,  who  was  known  by  the  title 
of  Bergmeister.  The  powers  of  this  official  appear  to  have  been 
very  great,  and  his  rulings  almost  final.  It  is  likely  that  he 
settled  boundary  and  underground  disputes  very  summarily, 
and  that  the  miners,  being  much  in  his  power,  and  possessing 
little  right  of  appeal  to  any  higher  tribunal,  would  perforce 
arrange  most  of  their  difference  among  themselves. 

In  some  manner  the  extralateral  doctrine  made  its  way  to 
England,  but  to  one  part  of  it  only,  so  far  as  I  can  ascertain. 
It  does  not  appear  to  have  been  current  in  Cornwall,  probably 
because  the  mines  there  had  all  been  discovered  centuries  before 
mining  became  an  organized  industry,  and  had  passed  into  the 
possession  of  landed  proprietors,  who  leased  them  on  such  terms 
as  they  saw  fit,  and  often  without  much  consideration  of  any 
rights  superior  to  their  own.  In  Great  Britain  the  State,  at  a 
very  early  date,  abandoned  to  the  surface. owner  all  underground 
rights,  except  as  to  gold  and  silver,  which  are  still  held  to  be 
" royal"  metals. 

In  a  book  entitled  "The  liberties  and  customs  of  lead  miners 
within  the  Wapentake  of  Wirks worth"  written  by  one  Edward 
Manlove,  and  published  in  1653,  we  learn  that  in  a  certain  part 
(and  perhaps  all)  of  the  Derbyshire  lead-mining  district,  the 
miner  had  the  right  "to  follow  his  vein  in  depth  (within  his 
end  lines)  wherever  it  led  him."  As  the  operations  there  at 
that  time  were  conducted  under  the  supervision  of  an  official 
known  as  a  "Barman"  (evidently  an  anglicised  version  of 
Bergmeister)  it  seems  probable  that  the  district  was  discovered 
by  German  miners,  or  else  organized  under  their  advice,  and  on 
the  basis  of  customs  with  which  they  were  familiar  in  their 
own  country. 

In  Spain  the  doctrine  appears  to  have  been  current  in  very 
ancient  times,  and  at  some  period  of  mediaeval  history  to  have 
been  abrogated;  and  again  later  revived  for  the  purpose  of  curing 
an  evident  injustice  to  the  miner  resulting  from  the  doctrine 


294  INTERNATIONAL  MINING  LAW 

of  vertical  boundaries  which  had  displaced  it.  For,  under  Title 
VII  of  the  mining  ordinances  promulgated  on  May  22nd,  1783, 
we  read  as  follows: 

"  Experience  having  shown  that  the  equality  of  the  mine  dimensions 
established  on  the  surface  cannot  be  maintained  underground,  where  in 
fact  the  mines  are  chiefly  valuable,  it  being  certain  that  the  greater  or 
less  inclination  of  the  vein  with  respect  to  the  plane  of  the  horizon  must 
render  the  respective  properties  in  the  mines  greater  or  smaller,  so  that  the 
true  and  effective  impartiality,  which  it  has  been  desired  to  show  to  all 
subjects  of  equal  merit,  has  not  been  preserved;  but  on  the  contrary,  it 
has  often  happened  that  when  a  miner  after  much  expense  and  labor, 
begins  at  last  to  reach  an  abundance  of  rich  ore,  he  is  obliged  to  turn 
back,  as  having  entered  on  the  property  of  another,  which  latter  may 
have  denounced  the  neighboring  mine,  and  thus  stationed  himself  with 
more  art  than  industry.  This  being  one  of  the  greatest  and  most 
frequent  causes  of  litigations  and  dissensions  among  miners,  and  con- 
sidering that  the  limits  established  for  the  mines  of  these  kingdoms,  and 
by  which  those  of  New  Spain  have  been  hitherto  regulated,  are  very 
confined  in  proportion  to  the  abundance,  multitude,  and  richness  of  the 
metallic  veins  which  it  has  pleased  the  Creator  of  his  great  bounty  to 
bestow  on  those  regions;  I  order  and  command  that  in  the  mines  where 
new  veins,  or  veins  unconnected  with  each  other,  shall  be  discovered,  the 
following  dimensions  shall  in  future  be  observed. 

"Sec.  2. — On  the  course  and  direction  of  the  vein,  whether  of  gold,  sil- 
ver, or  other  metal,  I  grant  to  every  miner,  without  any  distinction  in 
favor  of  the  discoverer,  whose  reward  has  been  already  specified,  200 
varas  (approximately  600  ft.  taken  on  a  level,  as  hitherto  understood. 

"Sec.  3. — To  make  it  what  they  call  a  square,  that  is,  making  a  right 
angle  with  the  preceding  measure,  supposing  the  descent  or  inclination 
of  the  vein  to  be  sufficiently  shown  by  the  opening  or  shaft  of  ten  yards, 
the  width  shall  be  governed  by  the  following  rule : 

"Sec.  4. — Where  the  vein  is  perpendicular  to  the  horizon  (a  case  which 
seldom  occurs)  a  hundred  level  yards  shall  be  measured  on  either  side 
of  the  vein,  or  divided  on  both  sides,  as  the  miner  may  prefer. 

"Sec.  5. — But  when  the  vein  is  inclined,  which  is  the  most  usual  case, 
its  greater  or  less  degree  of  inclination  shall  be  attended  to  in  the  follow- 
ing manner. 

"Sec.  6. — If  to  one  yard  perpendicular  the  inclination  be  from  three 


EXTRALATERAL  RIGHTS  295 

fingers  to  two  palms,  the  same  hundred  yards  shall  be  allowed  for  the 
width,  as  in  the  case  of  the  vein  being  perpendicular. 

"Sec.  7. — If  to  the  said  perpendicular  yard  there  be  an  inclination  of 
two  palms  and  three  fingers,  the  width  shall  be  of  112^  yards;  two 
palms  and  six  fingers,  125  yards;  two  palms  and  nine  fingers,  137^ 
yards;  three  palms,  150  yards;  three  palms  and  three  fingers,  162>£ 
yards;  three  palms  and  six  fingers,  175  yards;  three  palms  and  nine 
fingers,  187f£  yards;  four  palms,  200  yards.  So  that  if  to  one  perpen- 
'dicular  yard  there  correspond  an  inclination  of  four  palms,  which  are 
equal  to  a  yard,  the  miner  shall  be  allowed  200  yards  of  width  on  the 
declivity  of  the  vein,  and  so  on  with  the  rest. 

"Sec.  8. — And  supposing  that  in  the  prescribed  manner  any  miner 
should  reach  the  perpendicular  depth  of  200  yards  without  exceeding  the 
limits  of  his  portion,  by  which  he  may  commonly  have  much  exhausted 
the  vein,  and  that  those  veins  which  have  greater  inclination  than  yard 
for  yard,  that  is  to  say,  of  45  degrees,  are  either  barren  or  of  little  extent, 
it  is  my  sovereign  will  that,  although  the  declivity  may  be  greater  than 
the  above  mentioned  measures,  no  one  shall  exceed  the  square  of  200 
yards,  so  that  the  same  shall  be  always  the  breadth  of  the  vein  extended 
over  the  length  of  the  other  200,  as  declared  above. 

"Sec.  9. — However,  if  any  mine  owner,  suspecting  a  vein  to  run  in  a 
contrary  direction  to  his  own  (which  rarely  happens),  should  chose  to 
have  some  part  of  his  square  in  a  direction  opposite  to  that  of  his  prin- 
cipal vein,  it  may  be  granted  to  him,  provided  there  shall  be  no  injury 
or  prejudice  to  a  third  person  thereby." 

From  this  last  section  it  is  evident  that  in  Spain  the  extra- 
lateral  right  included  all  veins  the  apexes  of  which  lay  within  the 
surface  boundaries,  and  not  only  the  principal  vein,  as  was  the 
case  with  the  German  law.  Aside  from  this,  however,  here  we 
have  the  doctrine  approved  as  a  natural  right,  but  to  a  limited 
extent  only,  and  made  dependent  (as  to  limit)  upon  a  determina- 
tion of  the  dip  of  the  vein  as  shown  in  the  excavations  made  by 
the  discoverer  before  marking  out  and  recording  his  claim. 
As  the  excavation  required  was  a  shaft  ten  yards  deep  on  the 
lode,  not  enough,  according  to  our  modern  views  for  a  correct 
determination  of  the  true  average  dip,  disputes  between  neigh- 
bors were  inevitable,  and  frequently  occurred.  Some  of  these 
20 


296  INTERNATIONAL  MINING  LAW 

are  touched  upon  very  interestingly  in  Sec.  14,  which  reads  as 
follows : 

"As  it  has  been  found  that  the  license  or  permission  of  following  a 
vein  by  working  lower  down,  and  within  the  vein,  and  having  enjoyment 
thereof,  until  the  owner  himself  has  connected  it  with  his  own  workings, 
is  the  most  fruitful  cause  of  bitter  dissensions,  litigations,  and  disturb- 
ances among  the  mine  owners;  and  further  considering  that  such  intru- 
sion is  more  generally  the  result  of  fraud  or  chance  than  of  the  merit  and 
industry  of  the  person  so  intruding,  and  that  the  consequences  thereof 
occasion,  for  the  most  part,  nothing  but  serious  detriment  to,  or  the 
total  ruiri  of,  the  two  mines,  and  the  two  neighboring  miners,  to  the  great 
prejudice  of  the  public,  and  of  my  royal  treasury;  I  order  and  command 
that  no  mine  owner  shall  enter  the  property  of  another,  even  though 
merely  by  continuing  his  own  vein  at  a  greater  depth,  but  that  every  one 
shall  keep  and  observe  his  own  boundaries,  unless  he  makes  an  agree- 
ment and  stipulation  with  his  neighbor,  to  be  permitted  to  work  in  his 
property." 

As  the  Iberian  peninsula  has  been  the  most  productive  region 
of  Europe  in  metalliferous  minerals  ever  since  the  days  when  the 
Carthaginians  possessed  it,  and  still  holds  primacy  in  this  respect, 
it  seems  more  than  probable  that  the  doctrine  of  equilateral  rights 
existed  there  in  the  days  when  Spain  was  a  new  land,  like  the 
western  United  States  in  1849,  its  terrain  freely  open  to  the  pros- 
pector of  the  day,  who  perchance  made  his  own  laws,  as  did  those 
of  California,  basing  them  on  the  fundamental  theory  that  to 
the  discoverer  belonged — as  of  right — the  thing  he  discovered, 
to  wit,  the  vein,  no  matter  where  it  led  him.  We  may  also  per- 
haps hazard  the  guess  that,  as  the  country  filled  up  with  surface 
proprietors  engaged  in  agriculture  and  stock  raising,  this  right 
was  gradually  taken  away  from  him;  and,  finally,  that  in  the 
decree  just  quoted,  that  good  natured  and  wise  potentate, 
Albouss  XI,  desiring  to  encourage  the  industry  of  mining,  which 
was  beginning  to  languish  for  lack  of  new  discoveries  and  because 
of  the  rush  of  miners  to  the  newer  and  supposedly  richer  fields  of 
New  Spain,  by  making  it  more  to  their  interest  to  search  for 
undiscovered  lodes;  and  yet,  being  unable  or  unwilling  to  com- 


EXTRALATERAL  RIGHTS  297 

pletely  upset  the  doctrine  of  land  tenure  that  had  gradually 
come  to  be  regarded  as  fundamentally  proper  by  surface  owners, 
hit  upon  this  limited  procedure  as  a  compromise  between  the 
two  theories.  If  so,  it  was  of  the  nature  of  a  partial  restoration 
of  former  acknowledged  rights. 

In  considering  the  doctrine  on  its  merits,  its  antiquity  is  the 
first  element  that  deserves  attention.  It  is  to  be  remembered 
that  everywhere  in  the  world  the  mining  industry  began  either 
with  discoveries  resulting  from  the  conscious  and  intelligent 
efforts  of  laboring  men,  or  by  accident.  There  are  no  records  of 
mines  found  by  scientists  or  professional  men  of  any  kind.  Hence 
it  is  not  difficult  to  believe  that  the  doctrine  originated  among  the 
actual  discoverers  of  lodes  and  veins.  It  is,  on  its  face,  a  develop- 
ment of  primitive  times,  of  regions  free  from  landlords,  and  it 
gives  expression  to  the  idea  that  underground  property  should 
be  regarded  somewhat  differently  from  that  on  the  surface. 
Naturally  the  primitive  miner  knew  little  of  the  ways  of  veins 
and  lodes  of  any  kind,  but  the  so-called  fissure  vein,  when  at  its 
best,  is  a  most  regular  and  interesting  specimen  of  nature's 
handiwork,  and  doubtless  was  considered  as  the  normal  manner 
in  which  metal-bearing  ores  should  be  found.  We  know  more 
about  such  matters  today,  and  yet  no  one  has  been  able  so  far 
among  the  constructors  of  mining  laws  to  formulate  a  substitute 
for  the  extralateral  rights  doctrine  that  will  accomplish  for  the 
industry  what  it  has  already  done. 

That  such  an  unusual  conception  should  involve  difficulties 
hard  to  solve  detracts  nothing  from  its  real  merit.  It  is  most 
positively  advantageous  to  a  community  that  any  mineral  wealth 
L  existing  within  its  boundaries  should  be  discovered,  and  while  the 
mineralized  lands  still  remain  as  public  domain.  The  steps 
leading  up  to  such  results  are  laborious,  and  will  only  be  under- 
taken by  the  laboring  man.  He  is  the  one  individual  who  will 
go  out  into  the  wilds  and  undergo  the  discomforts  and  hardships 
inevitably  connected  with  exploratory  work.  Such  people  rarely 
have  money  to  maintain  themselves  while  sinking  shafts  or 
driving  levels,  and  they  will  not  and  cannot  engage  in  the  occu- 


298  INTERNATIONAL  MINING  LAW 

pation  of  prospecting  unless  the  community  agrees  upon  a  custom 
or  law  which  gives  them  a  proper  reward  for  their  efforts.  This 
the  extralateral  doctrine  does,  when  coupled  with  other  provisions 
enabling  discoverers  to  hold  their  finds  until  a  buyer,  or  a  partner 
with  means  is  secured.  A  mere  surface  plot  of  an  agreed  area, 
even  though  liberal  in  its  size,  does  not  answer  the  need.  But  the 
right  to  follow  the  ore  indefinitely  does,  because  it  is  a  lure  to  the 
man  who  has  money  and  is  inclined  to  risk  it  in  development 
work.  That  this  is  true  is  amply  demonstrated  by  a  considera- 
tion of  the  history  of  mining  districts  in  any  part  of  the  world. 
In  modern  communities,  where  unexplored  mineral  areas  exist, 
and  where  the  doctrine  of  extralateral  rights  is  not  in  force, 
discovery,  except  by  accident,  does  not  take  place.  Witness  the 
conditions  throughout  all  of  Latin  America,  of  British  Austral- 
asia, and  British  North  America,  in  old  Europe,  Asia,  and  the 
settled  parts  of  Africa.  Nothing  new  is  being  found  except  by 
pure  accident.  All  the  metal  coming  into  the  markets  of  the 
world  from  Mexico,  and  from  Central  and  South  America,  is 
being  taken  from  deposits  originally  discovered  by  the  pioneers 
of  those  lands.  The  same  is  true  of  the  gold  mines  of  the  Trans- 
vaal, which  did  not  attract  the  attention  of  capital  until  the  out- 
crops of  the  reefs  had  been  traced  and  worked  in  the  crudest 
way  for  several  years.  Even  then,  after  a  careful  examination 
by  one  of  the  most  capable  and  widely  known  mining  engineers 
of  the  day,  the  proposition  was  turned  down,  and  it  remained 
for  an  optimistic  promotor  without  technical  knowledge  to 
demonstrate  their  value. 

It  is  perhaps  necessary  to  admit  that  the  doctrine  cannot  be 
defended  except  on  the  theory  that  it  is  of  the  nature  of  an 
inducement  to  search.  The  experiences  in  the  old  German 
mining  camps,  in  western  United  States,  and  in  British  Columbia 
before  its  mining  law  was  changed,  show  that  it  did  produce 
discoveries,  and  continues  to  do  so  where  retained.  The  expe- 
rience in  Rhodesia  yields  no  conclusions,  for  that  field  was  already 
very  thoroughly  prospected  before  the  white  man  took  possession. 
On  the  other  hand,  the  experience  in  Spain,  where  the  doctrine 


EXTRALATERAL  RIGHTS  299 

was  in  force  on  a  limited  scale  for  a  time,  and  had  practically  no 
effect,  shows  that  half-way  measures  do  not  succeed.  This  is 
confirmed  by  the  results  obtained  in  those  modern  mining  re- 
gions, where  extra  wide,  or  large  square,  locations,  without 
extralateral  rights,  have  been  on  trial  as  a  substitute,  and  have 
failed  to  attract  the  prospector. 


CHAPTER  XV 

DISCOVERY  OF  ORE  AS  A  PREREQUISITE  TO  A  VALID  LOCATION 

Of  the  modern  mining  laws  37  require  a  discovery  of  mineral 
before  a  valid  location  can  be  made,  and  eight  do  not.  In  not 
one  of  them  is  to  be  found  a  reason  for  or  against  the  requirement, 
and  there  is  not  always  uniformity  on  the  subject  within  the 
groups  of  laws.  Thus,  the  laws  of  all  Canada  except  New  Bruns- 
wick, of  British  Australasia  except  Tasmania,  of  the  South  African 
group  without  exception,  and  of  all  Latin  American  countries 
except  Mexico,  Brazil,  Peru,  and  Venezuela,  require  discovery, 
and  many  of  the  last  group  demand  in  addition  that  a  sample  of 
the  mineral  found  be  deposited  with  the  authorities  when  the 
application  for  ground  is  made.  British  and  French  Guiana 
laws  insist  upon  discovery  as  a  prerequisite  to  location,  while 
Dutch  Guiana,  situated  between  the  two,  and  on  the  same 
mineral  field,  does  not.  In  America  the  Federal  law  inferentially 
requires  it,  but  in  practice  no  proof  of  the  fact  is  demanded  unless 
non-discovery  is  alleged  by  a  third  party.  Nothing  is  said  on 
the  subject  in  the  Texas  law. 

The  insistence  of  discovery  before  staking  is  one  of  the  most 
ancient  doctrines  of  mining  jurisprudence.  In  the  old  Spanish 
and  German  codes  no  vein  location  could  be  made  until  ore  was 
clearly  displayed  between  well-defined  walls  of  country  rock, 
and  this  rule  persists  in  Spain  and  Portugal,  and  in  many  of  the 
Latin  American  republics,  but  has  been  wholly  eliminated  in 
Mexico  which,  so  far  as  the  mineral  industry  is  concerned,  is  the 
most  advanced  of  its  group. 

Since  the  invention  of  the  percussion  and  core  drill,  permitting 
exploration  in  depth,  discovery  by  this  method  has  generally  come 
to  be  considered  as  valid,  and  the  drift  of  opinion  among  mining 

300 


DISCOVERY  OF  ORE  301 

operators  has  for  some  time  been  towards  the  elimination  of  sur- 
face discovery  as  a  necessary  basis  for  the  initiation  of  a  mining 
title,  while  a  very  respectable  number  go  so  far  as  to  advocate  the 
Mexican  doctrine  of  requiring  no  discovery  at  all.  It  is  now  well 
recognized  that  many  ore  bodies  have  no  surface  outcrop.  The 
position  of  some  of  these  (predicated  for  geological  reasons)  may 
be  determinable  by  the  drill,  while  for  others  shafts  and  levels 
therefrom,  or  tunnels,  or  both,  are  necessary.  It  is  therefore 
very  reasonably  argued  that  if  an  unoccupied  or  unused  tract  is 
desired  for  underground  exploration  purposes  by  anyone  willing 
and  able  to  push  the  same  vigorously,  the  right  to  do  so  should 
be  given,  regardless  of  whether  there  are  any  indications  of  min- 
eral values  on  the  surface  or  not. 

On  the  other  hand  it  is  not  to  be  forgotten  that  the  extralateral 
rights  doctrine  depends  entirely  on  the  existence  of  an  apex,  not 
necessarily  on  the  surface,  but  yet  within  vertical  planes  passing 
through  boundary  lines;  and  that  this  doctrine,  though  considered 
by  many  students  of  the  subject  as  undesirable  and  even  danger- 
ous, is  yet  worthy  of  very  careful  consideration  by  broad  thinkers, 
if  for  no  other  reason  than  because  of  the  very  successful  and 
profitable  industries  that  have  developed  under  its  provisions  in 
each  of  the  two  notable  mining  regions  where  it  is  in  force 
(United  States  and  Rhodesia).  Collaterally,  the  Mexican  law, 
which  gives  no  extralateral  rights,  calls  for  no  discovery,  and 
confers  perpetual  possession  and  usage  on  the  sole  condition  of 
the  payment  of  an  annual  ground  rental  should  also  be  considered. 
Under  its  provisions  a  splendid  industry  has  also  arisen,  and  in 
the  opinion  of  many  mining  engineers  and  operators  its  law  is 
t  altogether  the  best  in  existence. 

But  a  study  of  the  two  iindustres  that  have  grown  up  under 
these  opposing  and  contrasting  systems,  and  side  by  side  in  the 
case  of  Mexico  and  the  western  states  of  America,  reveals  some 
effects  that  should  be  noted.  To  reduce  the  field  under  investi- 
gation to  narrower  limits,  let  us  compare  conditions  in  the  Ameri- 
can states  of  Arizona  and  New  Mexico  with  those  in  the  adjoin- 
ing states  of  Sonora  and  Chihuahua  in  Mexico.  In  both  the 


302  INTERNATIONAL  MINING  LAW 

main  industry  is  mining.  Topographically,  climatologically, 
and  geologically  the  four  cover  practically  one  region.  If  there 
is  any  considerable  difference  in  their  mineral  potentialities  the 
balance  is  probably  in  favor  of  the  Mexican  half.  Their  areas 
are  nearly  equal.  Historically  the  southern  half  is  the  older, 
and  has  been  a  mineral  producing  district  the  longer  time.  Yet 
the  industry  there  has  produced  severe  and  continuous  poverty 
for  the  great  masses  of  the  people,  while  across  the  line  to  the 
north  it  has  resulted  in  widely  distributed  prosperity.  Con- 
siderable allowance  no  doubt  should  be  made  on  account  of  the 
racial  differences  between  the  two  populations,  but  this  will  not 
account  for  the  fact  that  while  on  the  American  side  of  the 
international  line  the  most  of  the  mines  have  been  and  are  now 
owned  by  resident  citizens  of  moderate  and  even  small  means, 
in  the  Mexican  states  the  ownership  has  always  been  among  a 
very  few,  and  is  now  very  largely  concentrated  in  the  hands  of 
close  corporations  the  most  of  whose  stockholders  are  foreigners. 
Again,  in  the  former,  prospecting  is  active  and  new  discoveries 
almost  a  continuous  performance,  while  in  the  latter  exactly 
contrary  conditions  in  this  respect  prevail,  though  for  the  last 
half  century  or  more  exploration  in  Mexican  mineral  districts 
has  been  as  freely  open  to  aliens  as  to  citizens. 

In  requiring  the  discovery  of  mineral  as  a  prerequisite  to  a 
valid  location,  the  framers  of  the  American  law  (as  is  well  known 
historically)  considered  that  he  who  found  the  outcrop  of  a  new 
mine  was  entitled  to  its  ownership,  and  should  not  be  confined 
in  its  development  and  operation  underground  within  narrow 
surface  limits.  They  also  held  the  complimentary  view  to  the 
effect  that  he  who  could  not  produce  an  outcrop  on  the  claim  he 
had  staked  off  should  not  be  allowed  the  possession  of  it,  if  some- 
one more  energetic,  more  intelligent,  or  even  more  lucky  did 
find  ore. 

To  recapitulate:  If  promising  mineral  ground  can  be  with- 
drawn from  the  public  domain  and  passed  into  private  hands 
simply  at  the  cost  of  staking  and  recording,  plus  a  nominal  annual 
acreage  rental,  and  even  plus  an  annual  development  expendi- 


DISCOVERY  OF  ORE  303 

ture,  without  regard  to  surface  indications  or  conditions,  then 
the  man  with  money  to  invest  in  land  and  its  development  has  a 
decided  advantage  over  the  man  with  no  capital  but  his  labor, 
in  the  normal  struggle  between  the  two  for  possession  of  the 
earth.  As  against  this  it  may  be  said  that  the  capitalist  has  a 
right  to  such  an  advantage,  and  to  deny  him  that  right  is — to 
such  an  extent — to  discourage  investment  in  underground  ex- 
ploration. Per  contra  it  can  be  urged  that  the  curtailment  under 
consideration  has  to  do  only  with  the  quantity  of  land  withdrawn 
without  apprent  cause,  and  should  not  affect  development;  or, 
to  put  the  matter  another  way,  that  some  limit  should  be  placed 
to  the  area  locatable  without  discovery,  or,  in  lieu  thereof,  a 
higher  annual  rental  or  assessment  requirement  be  demanded. 
It  is  generally  recognized  in  all  the  existing  mining  laws  that  he 
who  explores  for  low-value  substances  (coal,  oil,  gas,  etc.)  requires 
a  larger  field  in  which  to  operate  if  he  is  to  have  a  fair  run  for  his 
money,  than  one  who  searches  for  minerals  of  high  commercial 
value,  like  one  of  the  metals.  Here  the  heart  of  the  question  is 
reached.  The  earth's  available  mineralized  surface  is  of  limited 
extent.  The  demand  for  a  portion  of  it  is  steadily  increasing 
with  the  advance  of  knowledge.  Is  it  more  conducive  to  the 
general  good  that  its  possession  should  be  distributed  among  the 
many,  or  among  the  few?  Experience  in  other  classes  of  real 
estate  indicates  clearly  that  the  first  alternative  produces  more 
general  prosperity  than  the  second.  It  would  seem,  then,  to 
follow  logically  that  the  right  to  the  possession  and  usage  of 
mineral  land  should  be  founded  upon  something  more  than  the 
ability  to  pay  normal  taxes  upon  it. 


CHAPTER  XVI 

LEASEHOLD   vs.   FEE   SIMPLE   TITLE 

The  long-term  leasehold  system  for  the  tenure  of  mining 
property,  which  is  in  effec't  in  British  Columbia,  Nova  Scotia, 
the  Gold  Coast  and  Ashanti,  Egypt,  and  all  the  British  Aus- 
tralasian states,  either  alone  or  in  combination  with  the  annual 
leasehold  plan  as  a  preliminary  step,  provides  ample  security 
for  capital  when  the  period  is  sufficiently  long  or  when  it  carries 
reasonable  renewal  privileges,  and  when  the  annual  rental 
required  is  a  matter  of  not  over  4%  or  5%  upon  fair  valuation. 
These  conditions  are  complied  with  in  the  case  of  most  of  the 
above-mentioned  States.  The  system  has  the  added  advantage 
of  allowing  the  government  not  only  to  insist  upon  terms  tending 
to  secure  the  health  and  safety  of  employees,  but  to  enforce 
the  same  with  comparative  ease;  also,  with  great  facility  to 
collect  periodically  the  statistics  of  the  industry. 

The  annual  leasehold  system,  renewable  indefinitely,  on  pay- 
ment of  the  annual  tax,  which  is  current  in  all  the  Latin-American 
countries,  in  British  Australasia,  Rhodesia,  and  several  of  the 
Canadian  provinces,  appears  to  work  well,  as  far  as  it  goes, 
especially  where  the  laws  provide  for  conversion  at  any  time  at 
the  option  of  the  claimant  into  long-term  leases.  Temporary 
protection  is  given  to  holders  of  small  means  at  moderate  cost, 
which  is  yet  sufficient  to  cover  the  expenses  of  governmental 
administration,  and  to  provide  the  time  in  which  to  decide, 
through  preliminary  development,  whether  or  not  the  property 
can  be  made  profitable,  and  to  find  a  buyer  or  a  partner  if  the 
cost  of  doing  so  is  beyond  the  financial  ability  of  the  claimant. 

The  monthly  leasehold  plan,  which  is  confined  exclusively  to 
the  four  states  of  the  Union  of  South  Africa,  is  a  refinement  of 

304 


LEASEHOLD  VS.  FEE  SIMPLE  TITLE  305 

the  system  which  perhaps  has  not  been  long  enough  in  operation 
to  be  fairly  criticisable.  On  the  face  of  it  such  a  term  should 
not  be  satisfactory  to  capital,  yet  under  its  provisions  the  im- 
mense gold  industry  of  the  Transvaal  has  been  established  and 
is  being  operated.  In  that  state,  and  in  the  adjoining  one  of 
Orangia,  the  holder  pays  for  his  possessory  title  at  the  rate 
of  about  $40  per  acre  per  year,  a  ground  rental  which  the  average 
claim  on  the  Witwatersrand  reefs  will  perhaps  stand  so  long  as 
native  labor  is  available,  though  it  is  a  rather  heavy  tax.  For 
one  of  the  American  size  (a  little  over  20  acres)  it  would  amount 
to  over  $800  per  annum,  corresponding  to  5%  on  a  valuation  of 
$16,000.  This  is  far  above  the  actual  prospective  worth  of  the 
vast  majority  of  precious  metal  claims  during  their  development 
period,  and  perhaps  will  explain  why,  in  the  two  states  mentioned, 
there  is  so  little  claim  locating  outside  of  the  areas  already  proved 
to  be  mineralized.  On  the  other  hand,  in  Natal  and  the  Cape 
Province,  for  an  equal  area,  the  annual  tax  is  only  $60  and  $42 
per  year  respectively,  the  low  rate  probably  having  been  made 
to  encourage  discovery. 

The  theory  of  the  leasehold  system  for  mining  property,  as  con- 
trasted with  the  fee  simple  system  for  all  other  forms  of  real 
estate,  rests  upon  the  evident  fact  that  mines  are  properties 
which  are  steadily  decreasing  in  potential  income-producing 
ability  as  the  extraction  of  ore  proceeds,  in  consequence  of  which 
the  time  comes  for  all,  either  because  of  the  exhaustion  of  the 
ore,  or  the  inevitable  increase  of  expenses  in  depth,  when  opera- 
tions must  cease.  For  these  reasons  it  is  held  that  when  mines 
are  abandoned,  possession  should  return  to  the  community, 
so  that  the  surface  may  be  used  for  any  other  purpose  for  which 
it  is  suitable. 

The  case  for  the  fee  simple  title  rests  mainly  on  two  arguments. 
The  first,  and  by  far  the  most  important  of  these,  is  that  the 
feeling  of  pride  in  absolute  ownership  of  land  is  a  sentiment 
which  it  is  most  desirable  to  cultivate  and  encourage,  because 
it  tends  towards  the  growth  and  maintenance  of  individuality 
and  independence,  and  in  its  effects  upon  a  people  is  worth 


306  INTERNATIONAL  MINING  LAW 

all  it  may  cost  and  more.  The  second  is  that  an  exhausted 
patented  mine  will  inevitably  return  to  the  community  in  due 
time  through  the  failure  on  the  part  of  the  owner  to  pay 
taxes. 

It  will  be  interesting  to  note  that  in  British  Columbia,  Ontario, 
Quebec,  and  Newfoundland  the  laws  give  the  miner  the  option 
of  a  leasehold  or  crown  grant.  In  the  same  connection  it  will 
be  well  to  remember  that  the  American  Federal  law  accords  to 
the  possessory  (unpatented)  mining  claim  the  exact  legal  status 
of  a  perpetual  annual  leasehold,  so  far  as  the  government  is 
concerned,  and  to  the  extent  that  its  claimant  is  able  to  sustain 
his  right  in  the  courts  as  against  his  fellow  citizens. 

The  argument  advanced  by  some  opponents  of  the  fee  simple 
title,  to  the  effect  that  it  has  a  tendency  to  lock  up  a  vast  amount 
of  ground  in  the  hands  of  owners  who  are  either  unwilling  or 
unable  to  develop,  does  not  appear  to  be  sustained  by  the  facts, 
as  the  author  has  found  them.  Oil  the  contrary,  the  condition 
seems  to  be  that  owners  of  idle  patented  mining  ground  are 
generally  eager  to  sell  or  lease  if  the  opportunity  to  do  either 
is  offered.  The  case  does  not  seem  to  be  parallel  in  any  way 
to  that  of  the  holder  of  unimproved  lots  in  a  growing  city.  But, 
assuming  that  the  argument  is  sound,  correction  may  easily  be 
effected  by  a  provision  like  that  in  force  in  the  Canadian  Province 
of  Quebec,  where  the  holder  of  a  crown  grant  on  a  mining  claim 
is  still  liable  for  annual  assessment  work;  or  by  laws  such  as  those 
in  effect  in  several  of  the  American  States  (notably  Nevada) 
where  a  special  acreage  tax  is  levied  on  all  idle  patented  claims. 

As  an  industry  develops  the  laws  under  which  it  has  grown 
up  are  constantly  in  need  of  revision  or  amendment.  This  is 
inevitable.  The  problem  is  to  correct  wisely,  and  after  proper 
consideration  of  the  effect  in  other  parts  of  the  world  where 
regulations  similar  to  those  proposed  have  been  in  force.  Any 
legislation  that  discourages  personal  ownership  in  land,  and 
substitutes  for  it  government  or  community  ownership,  would 
seem  to  be  a  step  backward  instead  of  forward,  even  from  the 
point  of  view  of  the  intelligent  socialist. 


CHAPTER  XVII 
FREE  PROSPECTING  vs.  LICENSED  PROSPECTING 

Following  are  the  localities  where  free  prospecting  is  permitted 
by  the  mining  law  in  force : 

The  western  American  States  and  Alaska. 

Texas. 

Manitoba. 

Saskatchewan. 

Alberta. 

The  Northwest  Territory. 

The  Yukon  Territory. 

Mexico. 

All  the  Central  American  States. 

All  the  South  American  republics  except  Brazil  and  Argentina. 

Cuba. 

The  list  of  countries  where  a  prospecting  license  is  required 
is  as  follows: 

British  Columbia. 

Ontario. 

Quebec. 

Nova  Scotia. 

New  Brunswick. 

Newfoundland. 

Brazil. 

Argentina. 

Haiti. 

British,  Dutch,  and  French  Guiana. 

Egypt. 

All  the  British  Australasian  States. 

All  the  British  South  African  States. 

307 


308  INTERNATIONAL  MINING  LAW 

Rhodesia,  Japan  and  all  British  Protectorates.   ' 

The  arguments  for  these  two  principles  in  mining  law  may  be 
marshalled  as  follows: 

For  Free  Prospecting. — The  real  prospector  is  almost  invariably 
a  man  of  small  means;  and  cannot  afford  the  cost  of  a  license; 
and  when  the  document — as  is  often  the  case — confers  the  right 
to  locate  one  claim  only,  the  necessity  of  providing  himself 
with  several  of  them  upon  starting  out  on  a  prospecting  trip, 
during  which  he  anticipates  making  more  than  one  location, 
is  a  burden  which,  in  many  cases,  deters  him  from  the  enterprise 
altogether. 

The  advantages  accrffmg  to  a  state  through  the  discovery 
of  such  mineral  resources  as  may  exist  on  its  public  domain, 
before  such  areas  pass  under  private  ownership,  are  so  great 
and  so  manifest  that  every  obstacle  in  the  way  of  the  unrestricted 
privilege  of  search  thereon  should  be  removed.  Equally  great 
and  apparent  are  the  benefits  to  a  community  resulting  from 
mineral  discoveries  made  on  alienated  land  before  it  is  employed 
for  uses  which  might  forever  bar  search,  or  add  materially  to  its 
difficulty,  or  make  necessary  the  payment  of  heavy  indemnities 
for  possible  or  actual  damages  during  exploration. 

There  seems  to  be  no  inherent  reason  for  subjecting  such  an 
occupation  as  prospecting  to  license.  The  prospector,  to  the 
extent  that  he  is  successful,  adds  to  the  resources  of  the  country 
in  which  he  operates,  and  his  failures  detract  nothing  from  its 
wealth.  In  no  way  is  his  work  dependent  on  or  destructive 
of  the  advantages  and  facilities  created  by  modern  society. 

For  License. — The  cost  of  the  license  is  so  small  as  to  be  negli- 
gible in  the  majority  of  cases. 

It  is  most  desirable  for  the  authorities  to  be  able  to  keep  track 
of  the  prospector  and  of  his  activities,  and  this  is  possible  only  if 
he  is  under  license.  It  is  an  advantage  to  be  able  to  know  at  all 
times  how  many  of  the  fraternity  are  in  the  field,  where  the 
majority  of  them  are  exploring,  and  what  progress  is  being  made 
at  any  given  time  or  place.  It  is  not  conductive  to  orderly 
growth  and  progress  in  the  business  of  exploration  to  have  it 


FREE  PROSPECTING  VS.  LICENSED  PROSPECTING   309 

in  the  hands  of  wholly  unknown  and  irresponsible  parties,  or  to 
have  the  country  dotted  with  claims  the  status  of  which  it  is 
difficult  to  ascertain. 

,Most  of  the  mining  laws  of  modern  origin  (enacted,  say, 
during  the  last  30  years)  afford  internal  evidence  of  having  been 
framed  by  lawyers,  and  without  much — if  any — collaboration 
of  men  who  have  had  personal  experience  in  the  business  of 
mining.  The  result  in  those  cases  has  been  a  lack  of  proper 
consideration  of  that  department  of  the  industry  which  has  to  do 
with  the  matter  of  discovery,  and  over  emphasis  of  that  relating 
to  development  and  operation,  the  one  being  neglected  and  the 
other  hampered  with  unnecessary  form  and  ceremony.  In 
particular,  the  business  of  discovery,  the  steps  that  lead  up  to 
it,  and  the  conditions  under  which  it  occurs,  have  been  extensively 
misunderstood.  The  prospector  has  been  regarded  as  an  in- 
dividual of  more  or  less  means,  of  more  or  less  scientific  knowledge 
and  training,  and  as  one  who  at  slight  personal  expense  or 
discomfort  goes  forth  into  the  unoccupied  parts  of  the  land 
and  siezes  a  part  of  it  without  giving  much  value  to  the  commu- 
nity in  return.  The  occupation  thus  comes  to  be  considered  as  a 
privilege,  of  much  the  same  nature  as  that  of  the  hunter  and 
fisherman,  and  for  which  it  is  no  more  than  right  to  exact  a  license. 
This  view  is  the  only  one  that  will  explain  the  very  heavy  penal- 
ties imposed  in  a  number  of  the  most  modern  mining  acts  on 
individuals  found  exploring  for  mines  without  due  permission 
from  the  authorities.  That  the  conception  is  totally  erroneous 
is  easily  capable  of  demonstration.  Nothing  proves  it  more 
conclusively  than  the  frantic  governmental  offers  of  rewards 
i  for  new  discoveries  in  those  lands  from  which,  by  license  demands, 
the  pioneering  class  have  been  driven  away  or  compelled  to 
adopt  other  means  of  gaining  a  livelihood.  The  real  fact  is 
that  the  individual  of  an  exploring  proclivity  is  one  of  the  most 
valuable  assets  a  new  country  can  possess.  Instead  of  asking 
him  to  pay  for  the  right  to  exercise  his  peculiar  faculty,  we  should 
encourage  him  in  every  reasonable  way  to  give  it  full  play. 
If  we  are  misled  by  his  frequent  disregard  for  the  conventionalities 


310  INTERNATIONAL  MINING  LAW 

in  language,  dress,  and  personal  habits,  we  might  as  well  com- 
plain of  the  same  in  the  farmer  and  the  laboring  man  of  all  classes. 
Furthermore,  his  services  cannot  be  bought  in  the  ordinary 
way.  All  efforts  to  stimulate  discovery  by  cash  or  other  kinds 
of  rewards  have  everywhere  failed.  The  man  of  true  prospecting 
spirit  is  too  erratic  and  too  improvident  (some  might  say  too 
artistic)  to  work  for  hire.  He  wants  only  what  he  can  find. 
He  should  be  welcomed  in  every  mineral  region  with  a  brass 
band,  and  given  the  freedom  of  its  limits. 


CHAPTER  XVIII 
PROSPECTING  AREAS 

These  are  obtainable  in  a  large  number  of  mining  countries. 
The  theory  upon  which  they  are  based  is  that  if  an  individual  or 
company  with  means  wishes  to  conduct  exploring  operations 
upon  a  large  and  scientific  scale,  to  locate  suspected  mineral 
of  which  there  are  no  direct  indications  on  the  surface,  or  to  open 
up  a  deposit  already  discovered  but  neglected,  with  the  view  of 
ascertaining  if  it  can  be  made  payable,  the  opportunity  to  do  so 
should  be  encouraged  by  the  temporary  exclusive  grant  of  a 
good  sized  tract  of  land,  with  the  right,  within  a  reasonable 
time,  of  selecting  a  smaller  tract  from  within  it  for  permanent 
operations. 

There  would  seem  to  be  no  reasonable  objections  to  the  plan  in 
cases  where  there  are  no  certain  indications  on  the  surface  of 
mineral  values  below,  or  where  the  ground  had  already  been 
looked  over  by  the  individual  prospector  and  recognized  as  too 
unpromising  for  his  method  of  operation.  Coal,  oil,  gas;  and 
many  other  desirable  mineral  substances  may  often  be  inferred 
with  great  certainty,  for  geological  reasons,  under  areas  com- 
pletely free  from  all  surface  indications  of  them,  and  wholly  be- 
yond the  reach  of  the  pioneer  mineral  explorer.  The  same  is  occa- 
sionally true  in  cases  of  metalliferous  deposits.  Many  instances 
also  are  known  where  outcropping  veins  and  segregations,  too 
low  in  value  or  too  scattered  in  disposition  to  attract  the  pros- 
pector or  induce  preliminary  exploration  by  him,  have  been 
successfully  developed  into  mines  of  great  value  by  means  of 
well  directed  capital. 

But  experience  in  those  countries  where  such  areas  are  obtain- 
able shows  that  unless  much  care  is  exercised  in  granting  them 
21  311 


312  INTERNATIONAL  MINING  LAW 

unfortunate  results  may  easily  follow.  Unless  the  grant  is 
clearly  recognized  as  a  privilege  which  should  be  liberally  paid 
for  by  the  recipient,  the  individual  explorer  who  has  not  the 
means  to  take  advantage  of  it  is  liable  to  be  discouraged  in  his 
line  of  activity,  particularly  if  the  area  reserved  from  his  inves- 
tigation is  large,  or  has  not  previously  been  accessible  to  him. 
Of  course,  in  lands  where  the  prospector  has  never  existed  this 
objection  has  no  force,  but  where  free  prospecting  is  allowed 
it  has  much  weight.  It  cannot  be  too  strongly  emphasized  that 
everywhere,  either  at  the  beginning  of  the  mining  industry,  or 
at  some  time  later  when  new  discoveries  are  needed  to  keep  it 
alive,  the  pioneer  explorer  is  an  absolute  necessity,  and  should 
be  given  his  opportunity  before  much  ground  is  locked  up  in 
State,  National,  or  private  reserves  of  any  kind. 

In  countries  where  prospecting  licenses  are  required,  and  where 
the  business  of  mining  is  suffering  because  of  the  lack  of  new 
discoveries,  instead  of  trying  to  stimulate  exploration  by  rewards 
of  money,  or  of  large  claims,  or  other  special  privileges,  all  of 
which  devices  have  so  far  proved  futile,  it  would  be  an  interesting 
experiment  to  throw  open  for  a  year  or  longer  a  tract  of  the  public 
domain  of  good  size  as  an  absolutely  free  public  prospecting 
area,  und6r  conditions  and  rules  that  would  give  the  explorers 
such  right  to  acquire  property  as  has  proved  successful  in  attract- 
ing their  services  elsewhere.  If,  for  instance,  such  tracts  were 
widely  advertised  as  to  be  thrown  open  for  one  or  more  years, 
it  seems  probable  that  prospectors  would  pour  into  them  and 
give  them  such  a  preliminary  surface  examination  as  could  be 
secured  in  no  other  way.  That  is  the  kind  of  prospecting  area 
that  would  be  of  the  largest  public  benefit,  because  it  would 
probably  result  in  a  number  of  discoveries,  several  of  which 
might  later  become  the  foundations  of  extended  development 
by  capital.  A  prospecting  area  for  the  prospector  himself  would 
be  simply  a  return  to  the  condition  of  the  "early  days"  in  every 
part  of  the  world  where  notable  mineral  discoveries  have  been 
made. 


CHAPTER  XIX 

DEFECTS  AND  DEFICIENCIES  OF  THE  AMERICAN  LAW 

In  the  opinion  of  the  author  the  two  most  important  deficiencies 
of  the  American  law  are,  first,  that  it  applies  only  to  a  part  of  the 
Union  and,  second,  that  it  makes  provisions  for  the  discovery  and 
operation  of  mines  on  only  the  unoccupied  public  domain  of  the 
nation. 

The  first  could  probably  be  cured  without  much  difficulty 
except  in  the  case  of  the  State  of  Texas,  but  as  it  now  stands  it 
would  have  small  application  east  of  the  Mississippi  Valley 
where  but  little  public  land  still  remains. 

To  make  its  provisions  apply  on  privately  owned  and  State 
lands  will  call  for  a  reconsideration  of  our  whole  doctrine  of 
land  tenure.  What  can  be  and  has  been  accomplished  in  auto- 
cratic European  countries  as  well  as  in  some  of  those  under 
liberal  parliamentary  rule  along  this  line,  will  be  effected  with 
considerable  difficulty  in  a  pure  democracy.  Yet  the  time  must 
come  When  the  nation,  having  regard  for  the  probably  enormous 
undiscovered  metallic  wealth  in  the  older  states  of  the  Union, 
will  have  to  face  the  question  and  solve  it.  The  experience  in 
the  British  Isles,  from  which  country  we  have  inherited  our  ideas 
of  the  nature  of  real  property,  and  where  all  attempts  to  bring 
about  modifications  of  the  doctrine  held  have  so  far  failed,  in 
spite  of  the  fact  that  everywhere  else  in  Europe  changes  have  been 
effected,  is  an  indication  of  how  difficult  it  will  be  for  us  to  alter 
our  views  even  now. 

Meantime  it  should  not  be  so  hard  to  'take  steps  towards  that 
end  in  those  states  where  the  Federal  law  now  applies,  and  it  is 
full  time  to  move  in  that  direction.  Already  vast  areas  in  the 

far  West  have  passed  out  of  the  control  of  the  people  in  the  form 

313 


314  INTERNATIONAL  MINING  LAW 

of  grants  to  railroad  corporations,  ostensibly  of  land  suitable  only 
for  surface  occupation  and  usage  in  agriculture,  grazing,  forestry, 
etc.,  and  also  granted  with  a  special  reservation  of  all  mineral 
rights  except  those  of  coal  and  iron;  but  which  the  grantees  or 
their  assigns  are  now  holding  under  the  same  theory  by  which 
real  estate  is  held  in  the  older  parts  of  the  country,  namely, 
that  ownership  of  the  surface  carries  with  it  ownership  of  every- 
thing vertically  underneath  it. 

It  will  be  impossible  to  discuss  here  the  legal  aspects  of  this 
question,  but  simply  to  call  attention  to  the  fact  that  in  all  parts 
of  the  civilized  world  except  in  the  British  Isles  and  in  the  United 
States  this  doctrine  has  been  virtually  abandoned,  and  in  its 
place  has  been  substituted  the  theory  that  the  unexplored  subsoil, 
being  "res  nullus"  belongs  either  to  the  national  sovereign  in  the 
case  of  autocracies,  or  to  the  Nation  in  countries  under  parlia- 
mentary governments.  This  will  be  made  clear  by  examining 
the  digests  in  this  volume.  Further  it  will  be  interesting  to  note 
that  everywhere,  except  in  the  United  -States  and  four  of  the 
Canadian  provinces,  the  sovereign  or  the  nation  as  represented 
in  its  legislature,  refuses  to  give  fee  simple  title  to  the  under- 
ground. Instead,  the  right  of  possession  and  usage  is  offered 
under  some  form  of  lease,  either  for  a  month,  a  year,  or  a  term 
of  years,  or  in  perpetuity,  in  all  cases  dependent  on  some  form 
of  monthly  or  annual  rental,  default  in  the  payment  o£  which 
automatically  causes  forfeiture  of  the  right. 

In  the  matter  of  placer  claims  new  legislation  is  much  needed. 
As  the  law  now  stands,  if  no  veins  or  other  forms  of  mineral 
deposits  in  rock  in  place  have  been  discovered  within  its  lines 
by  the  time  a  patent  is  granted,  the  deed  from  the  government 
passes  fee  simple  title  to  all  that  may  hereafter  be  found.  This  is 
obviously  an  unwise  provision,  having  the  effect  of  withdrawing 
the  ground  from  under-surface  exploration  except  by  its  owner, 
while  the  grantee  acquires  more  than  the  locator  asked  for  or 
expected  to  get.  The  Land  Office  should  be  authorized  in  such 
cases  to  issue  a  patent  in  which  undersoil  minerals  are  expressly 
reserved.  On  the  other  hand,  when  that  form  of  claim  is  used 


DEFECTS  OF  THE  AMERICAN  LAW  315 

to  acquire  beds  of  coal,  pools  of  oil,  reservoirs  of  gas,  or  deposits 
of  other  substances  supposed  to  exist  because  of  surrounding 
geological  conditions,  the  fee  simple  title  to  the  same  should 
ultimately  pass  to  the  individual  or  corporation  that  had  the 
energy  and  enterprise  to  explore  and  discover.  The  author  is 
not  in  favor  of  substituting  leases  in  such  cases,  no  matter  how 
favorable  their  terms  might  be.  It  is  true  that  this  is  the 
solution  of  the  problem  adopted  almost  everywhere  else  in  such 
cases,  but  that  does  not  necessarily  prove  it  to  be  the  best  one. 
The  general  effects  of  leasehold  titles  on  the  individual  and  the 
community  should  be  taken  into  consideration.  This  has  been 
pointed  out  in  Chapter  XVI,  and  nothing  further  need  be  said 
here  on  the  point. 

Many  of  the  most  glaring  deficiencies  of  the  American  law 
have  been  corrected  by  the  various  State  laws,  and  some  of  the 
difficult  situations  that  have  arisen  under  the  doctrine  of  the 
apex  have  been  overcome  by  the  consent  of  the  community  where 
they  originated  to  ignore  the  letter  of  the  law.  This  is  one  of 
the  most  interesting  developments  in  the  evolution  of  democracy, 
and  has  a  generally  true  bearing  on  the  science  of  jurisprudence. 
Just  as,  in  the  matter  of  frauds,  it  is  impossible  to  enumerate 
all  that  may  be  invented  or  attempted,  hence  making  it  very 
difficult  to  exactly  define  the  nature  of  the  offense,  or  prescribe 
adequately  in  advance  the  punishment  that  should  always  follow; 
so,  in  the  case  of  laws  framed  to  govern  operations  upon  the 
infinitely  varying  forms  in  which  ore  deposits  have  been  disposed 
by  Nature  in  the  crust  of  the  globe,  there  will  be  found,  from 
time  to  time,  conditions  that  have  not  been  contemplated  in  the 
Jaw,  no  matter  what  its  class  may  be,  and  that  are  beyond  its 
powers  to  solve  with  perfect  justice.  Because  this  must  inevi- 
tably be  so,  it  does  not  follow  that  a  doctrine  conferring  equity 
in  the  vast  majority  of  cases  should  be  set  aside  because  it 
fails  completely  in  a  small  number  of  them,  and  then  must  be 
decided  by  the  commonsense  of  the  people  acting  outside  of  the 
letter  of  the  law.  . 

The  costs  connected  with  the  process  of  patenting  mining 


316  INTERNATIONAL  MINING  LAW 

claims  are  larger  than  they  should  be.  This  is  mainly  due  to  the 
fact  that  the  procedure  that  has  been  prescribed  is  so  unneces- 
sarily complicated  and  antiquated  that  the  services  of  a  lawyer 
are  generally  required.  This  defect  can  be  cured  without  legis- 
lation. The  preparation  of  patent  papers  should  be  placed  in 
the  hands  of  the  local  land  office  officials,  and  no  charge  made  for 
the  work.  Advertising  and  surveying  costs  should  be  reduced, 
also  the  price  of  the  land,  and  payment  for  the  same  by  install- 
ments should  be  made  possible. 

There  is  need  of  legislation  in  connection  with  tunnel  rights. 
There  is  nothing  in  the  law  providing  for  their  reversion  to  the 
public  domain  after  abandonment.  Many  enterprises  of  this 
kind,  started  for  drainage,  transportation,  or  discovery  purposes 
have  been  idle  for  years,  with  owners  dead  or  unknown,  or  unable 
to  continue  work  or  even  keep  up  repairs.  For  such  property 
it  is  often  impossible  to  obtain  clear  title,  or  to  compel  the  record 
owner  or  his  assigns  to  resume  work  or  to  sell  at  a  reasonable 
price.  In  the  matter  of  mill  sites  the  law  should  be  changed  so 
that  only  surface  rights  could  be  obtainable  under  that  form  of 
claim. 

The  author  is  not  in  favor  of  the  abolition  of  the  apex  and 
extralateral  rights  doctrine  for  reasons  given  in  Chapter  XIV, 
but  can  see  good  cause  for  modifying  it  so  that' the  right  would 
attach  only  to  the  vein  or  deposit  first  discovered,  and  upon  which 
the  location  was  made,  the  pursuit  of  all  other  veins  subsequently 
found  to  be  limited  by  vertical  boundary  lines.  This  would  be 
no  hardship  on  the  original  discoverer,  and  would  simplify  matters 
greatly  for  adjoining  owners.  Discovery  by  borehole  should  be 
distinctly  legalized. 

The  rules  for  the  staking  of  claims  could  be  much  improved 
without  legislation,  and  without  adding  unduly  to  the  obligations 
of  the  prospector.  The  method  prescribed  in  the  French  Guiana 
law  for  this  act  is  worthy  of  consideration,  as  it  not  only  tends 
to  the  installation  of  monuments  of  much  greater  permanency, 
but  makes  their  removal  or  migration  a  matter  of  greater  diffi- 
culty. Several  of  the  Canadian  provinces  have  most  excellent 


DEFECTS  OF  THE  AMERICAN  LAW  317 

rules  for  this  act,  which  is  generally  very  carelessly  performed  by 
the  American  locator,  entailing  uncertainty  or  confusion  later 
on  if  clearly  defined  original  lines  ever  become  of  importance. 

In  all  changes  that  may  be  made  in  the  Federal  law  the  pros^ 
pector  and  the  miner  should  be  given  the  opportunity  to  express 
themselves.  There  are  plenty  of  men  who  are  now  or  who  have 
been  in  the  past  actual  explorers  and  diggers,  with  ideas  worth 
listening  to,  and  with  the  ability  to  state  them.  It  should  not 
be  forgotten  that  the  law  as  it  now  stands  was  framed  by  just 
such  people,  and  that  for  nearly  70  years  the  industry  has  been 
operated  under  its  provisions  with  magnificent  results.  It  is 
their  right  to  be  consulted,  and  it  will  pay  to  listen  attentively 
to  what  they  may  have  to  say. 


CHAPTER  XX 

MISCELLANEOUS  HISTORICAL  NOTES 

In  Canada  mining  began  in  1857;  in  British  Columbia,  which 
was  first  entered  and  explored  by  the  pioneers  who  poured  into 
California,  in  1849  and  1850,  and  who,  from  San  Francisco  and 
Portland  as  bases,  spread  up  the  coast  and  into  the  interior 
everywhere  in  search  of  gold.  One  of  the  great  alluvial  centers 
discovered  during  this  movement  was  known  as  the  Caribou 
district,  around  the  head  waters  of  the  Frazer  river.  In  1863, 
when  at  its  best,  this  field  yielded  nearly  $4,000,000  in  gold. 
From  that  maximum  the  output  steadily  declined  until  in  1893 
it  amounted  to  less  than  $400,000.  During  the  years  of  depres- 
sion the  prospectors  that  still  remained  in  the  country,  reinforced 
by  others  from  Washington,  Idaho,  and  Montana,  swarmed 
over  the  region,  and  a  great  number  of  lodes  and  deposits  of 
silver,  lead,  and  copper  ore  were  discovered,  as  well  as  some 
carrying  more  or  less  gold,  so  that  by  1900  the  output  of  the 
first  two  metals  was  amounting  in  value  to  nearly  $5,000,000 
per  annum,  while  that  of  copper  had  reached  $1,750,000. 

During  this  period  of  discovery  and  development  mining  was 
conducted  under  District  laws  practically  identical  with  those 
of  the  United  States,  but  in  1897  they  were  repealed,  and  in  their 
place  a  law  was  enacted  based  largely  upon  the  principles  adopted 
in  eastern  Canada. 

In  1887  nickel  ore  was  discovered  by  railroad  graders  at 
Sudbury  in  the  western  part  of  the  province  of  Ontario.  •  In  1897 
very  rich  alluvial  gold  deposits  were  found  by  American  pros- 
pectors in  the  valley  of  the  Klondyke  river  and  some  of  its 
tributaries.  The  region  was  at  first  thought  to  be  within  the 
limits  of  Alaska.  When  that  was  shown  to  be  an  error,  prospect- 
ing ceased. 

318 


MISCELLANEOUS  HISTORICAL  NOTES  319 

In  1905  railroad  graders  discovered  the  silver  lodes  of  Cobalt 

the  northern  part  of  Ontario,  and  in  1909  the  Porcupine  gold 
district  was  found  by  hunters.  All  three  became  notable  in 
the  production  of  the  metals  named  and  still  continue  so,  except 
the  Klondyke,  where  the  cream  has  been  skimmed  and  the 
country  is  now  in  the  hands  of  dredging  companies  who  are 
maintaining  a  handsome  though  steadily  decreasing  output. 
No  lode  mining  of  any  importance  has  come  into  existence 
this  region. 

During  the  quarter  century  which  witnessed  these  th 
important  discoveries  the  regions  in  which  they  were  made  we: 
operating  under  the  provisions  of  a  general  Dominion  Mining 
Law  which  clung — with  slight  modifications — to  the  general 
principles  enunciated  in  the  British  Columbian  law  of  1897. 

In  Australia  gold  mining  began  in  1851  in  the  provinces  of 
New  South  Wales,  Victoria,  and  South  Australia,  and  by  1858 
the  industry  had  spread  into  Queensland,  Tasmania,  and  New 
Zealand,  and  by  1892  into  Western  Australia.  Mining  for  other 
metals  did  not  become  important  until  1882,  but  by  1891  had 
exceeded  the  gold  output  in  value,  and  has  maintained  this 
prominence  ever  since. 

In  the  early  days  of  the  industry  in  all  these  British  colonies 
except  Western  Australia,  the  only  law  that  existed  was  in  the 
form  of  District  regulations  enacted  by  the  miners  themselves, 
which  had  to  do  mainly  with  alluvial  gold  deposits,  and  were — 
in  the  main — very  similar  to  those  which  originated  among 
the  miners  in  California.  At  first  these  were  of  the  simplest 
kind,  but  auriferous  quartz  veins  were  quickly  found  by  the 
prospectors,  who  then  (in  1858)  added  to  their  rules  the  American 
doctrine  of  the  apex  and  extralateral  right,  applying  it  to  all 
forms  of  mineral  deposits  occurring  in  rock  in  place.  As  in 
America,  the  practice  produced  much  litigation,  and  instead 
of  holding  to  the  principle  the  Australians  decided  in  1866  to 
abandon  it. 

In  considering  the  beginnings  of  mining  law  in  these  colonies 
it  is  to  be  remembered  that,  unlike  the  conditions  that  prevailed 


320  INTERNATIONAL  MINING  LAW 

in  western  America  at  the  time  of  the  California  gold  discoveries, 
where  the  country  was  entirely  unoccupied  except  by  Indians 
in  the  interior  and  Mexicans  along  the  Coast,  Australian  settle- 
ment by  whites  began  in  1788  with  the  establishment  of  a  penal 
colony  at  Botany  Bay,  in  what  is  now  the  province  of  New  South 
Wales,  and  that  during  the  years  between  that  date  and  1858 
very  considerable  areas  had  been  granted  to  individuals  and 
corporations  for  agriculture,  grazing,  and  coal  mining  purposes. 
As  parts  of  these  areas  proved,  in  the  years  between  1851 
and  1858  to  include  not  only  very  rich  alluvial  gold  deposits, 
but  regions  highly  seamed  with  gold-bearing  quartz  veins, 
the  doctrine  of  the  apex  had  to  contend  with  many  conditions 
not  found  in  California  and  other  parts  of  our  West.  For  while 
in  some  of  their  grants  the  government  had  definitely  reserved 
in  the  deeds  the  undiscovered  but  suspected  minerals  underneath, 
and  in  others  had  as  definitely  granted  them,  in  perhaps  the 
majority  of  cases  the  subject  was  not  referred  to  at  all,  or  else 
in  so  ambiguous  and  indefinite  a  way  as  to  require  adjudication 
in  the  courts.  Hence  the  doctrine  added  a  new  difficulty  to  a 
problem  already  sufficiently  complicated,  and  when  it  was  aban- 
doned in  1866  the  reason  was,  confessedly,  more  to  relieve  the 
industry  from  a  possible  heavy  load  of  future  litigation,  than  to 
eliminate  any  other  bad  effect  already  produced.  In  fact,  while 
it  was  in  force,  this  doctrine  caused,  as  was  the  case  in  America 
and  western  Canada,  an  era  of  intense  and  vigorous  discovery, 
and  when  it  was  abandoned  this  era  came  to  an  end  (as  has  been 
the  case  in  British  Columbia),  although  in  Australia  the  prospec- 
tors continued  active  for  a  number  of  years  in  those  parts  of  the 
continent  where  little  or  none  of  the  land  had  been  alienated 
for  agricultural  or  grazing  purposes,  and  brought  in  several  new 
districts  of  importance,  the  most  notable  of  which  was  that  of 
Kalgoorlie  in  Western  Australia. 

The  settlement  of  New  Zealand  began  in  1840.  The  first 
discovery  of  gold  took  place  in  1852  near  Coromandel,  but  was 
of  small  importance.  In  1857  the  metal  was  found  in  payable 
quantities  at  Nelson,  and  in  1858  a  specific  gold  field  act  was 


MISCELLANEOUS  HISTORICAL  NOTES  321 

promulgated,  which  was  largely  modelled  on  the  miners'  rules 
then  current  in  Australia,  anpl  included  the  apex  doctrine.  The 
output  from  this  district  was  also  small  and  did  not  attract  the 
attention  of  the  outside  world  until  1861,  when  the  Otago  fields 
were  found.  This  was  followed  in  1863  by  the  discoveries  at 
Marlboro,  and  in  1865  by  the  opening  of  the  West  Coast  diggings. 
About  this  time  attention  was  drawn  toward  quartz  mining, 
and  as  the  alluvial  deposits  one  by  one  gave  signs  of  exhaustion 
and  passed  into  dredging  propositions,  the  need  of  a  code  of 
laws  to  cover  the  necessities  of  underground  operations  was  felt. 
Hence,  in  1877  a  general  mining  law  was  enacted  in  which  the 
apex  doctrine  was  abandoned,  and  the  general  principles  in  effect 
by  that  time  in  Australia  were  adopted.  In  1866  a  special  law 
was  passed  covering  the  mining  of  coal  and  Kauri  gum.  From 
time  to  time  since  then  alterations  and  amendments  have  been 
enacted  at  almost  every  session  of  the  colonial  parliament. 

Tasmanian  settlement  by  whites  began  in  1803  by  the  arrival 
of  400  English  convicts  at  the  mouth  of  the  Derwent  river  at 
the  southern  end  of  the  island  and  the  foundation  of  Hobarts- 
town,  which  became  the  capital  of  the  colony.  In  the  following 
year  another  company  of  convicts  was  landed  on  the  northern 
coast,  resulting  in  the  establishment  of  the  city  of  Launceston 
at  the  head  of  the  estuary  of  the  Tamar  river.  By  1852  when 
gold  was  first  discovered,  the  population  of  the  island  had  in- 
creased to  50,000  and  considerable  areas  of  public  land  had  been 
alienated.  Prior  to  1837  no  grants  contained  any  reservation 
of  minerals,  but  in  that  year  the  authorities  began  the  reservation 
of  gold  and  silver.  When  gold  production  commenced  the  Gover- 
nor issued  a  proclamation  declaring  that  all  kinds  of  gold  deposits, 
whether  alluvial  or  quartz,  and  whether  on  the  public  domain  or 
on  alienated  land,  were  the  property  of  the  government,  and  if 
mined  without  license  would  result  in  criminal  prosecution.  In 
1859  the  first  goldfield  act  was  promulgated,  and  in  1862  the  law 
was  amended  so  as  to  include  all  minerals.  In  this  law,  and  in 
those  that  have  since  been  enacted  referring  to  the  mining  in- 
dustry, the  fundamental  principles  of  the  existing  Australian 


322  INTERNATIONAL  MINING  LAW 

system  were  adopted,  and  since  then  no  mining  rights  other 
than  leaseholds  have  existed,  while  practically  all  freehold  titles 
that  had  previously  been  acquired  have,  by  forfeiture  or  con- 
demnation, returned  to  the  government.  So  complete  has  been 
this  process  that  Tasmania,  of  all  the  dependencies  of  the  British 
Empire,  is  today  the  most  perfect  example  of  the  results  pro- 
ducible by  the  system  on  the  mining  industry. 

Under  this  law  and  regime  development  lagged  in  the  colony 
except  in  those  places  where  alluvial  gold  had  already  been  found, 
and  as  these  proved  of  small  area  and  but  moderately  productive 
as  compared  with  the  Australian  and  American  fields  the  pioneer 
explorers  rapidly  drifted  away.  However,  a  revival  of  activity 
took  place  in  1871  with  the  accidental  discovery  of  the  Mt. 
Bischoff  tin  deposits,  and  again  in  1882  and  1886,  when  the  silver- 
lead  mines  of  Zeehan  and  the  copper  mines  of  Mt.  Lyell  were 
discovered.  None  of  these  have  been  followed  by  other  finds 
of  importance  in  the  same  vicinity  or  elsewhere,  and  on  the 
whole  the  industry  has  declined  markedly  in  importance  during 
late  years. 


CHAPTER  XXI 
CONCLUSION 

It  is  impossible  to  study  the  mining  laws  of  the  nations  without 
coming  to  the  conclusion  that  many  of  them  have  been  framed 
by  individuals  better  acquainted  with  the  business  of  legisla- 
tion than  with  that  of  finding  and  developing  mines.  This  is 
particularly  true  of  nearly  all  the  British  laws,  and  is  very  much 
less  the  case  among  those  of  the  Latin-American  class.  The 
most  notable  instance  of  the  contrasting  results  produced  by  the 
two  methods  of  construction  is  perhaps  that  of  the  American 
Federal  mining  law  as  compared  with  that  of  the  British  South 
African  dependency  of  Rhodesia.  The  former  was  framed  by  the 
miner  and  explorer,  without  the  aid  of  either  the  lawyer  or  the 
mining  engineer;  the  latter  by  the  lawyer  and  engineer  without 
any  signs  of  assistance  from  the  practical  miner. 

As  discovery  and  preliminary  exploration  must  precede  per- 
manent development  and  operation,  the  method  that  seems  to 
have  been  generally  followed  should  have  been  reversed.  But 
laws  referring  to  specialized  industries  have  usually  been  drawn 
by  legislators  rather  than  by  operators,  and  have  been  brought 
into  workable  condition  thereafter  only  by  long  processes  of 
amendment.  It  has  been  the  good  fortune  of  America  that  its 
law  was  drafted  by  miners,  and  the  results  that  have  been  at- 
tained under  it  would  seem  to  indicate  that,  in  the  main,  their 
work  was  commendable.  This  is  not  to  say  that  it  is  perfect  and 
cannot  be  improved,  or  that  many  of  the  others  produced  under 
opposite  conditions  are  all  wrong  in  principle.  Had  there 
been  a  lawyer  or  two  among  the  California  pioneers  to  put  the 
ideas  of  the  latter  into  clearer  phraseology,  or  an  engineer  or 
two  to  explain  what  was  known  in  those  days  of  the  forms  of 

323 


324  INTERNATIONAL  MINING  LAW 

ore  occurrences,  it  is  quite  possible  that  much  subsequent  grief 
might  have  been  avoided. 

In  the  digests  presented  in  this  volume  very  marked  contrasts 
will  be  found  in  methods  aiming  to  bring  about  identical  ends. 
The  farther  back  one  looks  into  the  history  of  mining  the  simpler 
the  rules,  regulations,  and  customs  are  found  to  be.  This,  of 
course,  points  to  times  when  the  unoccupied  public  domain  of 
each  community  was  large,  the  mining  class  small,  the  demand 
for  the  precious  metals  for  coinage  purposes  insistent,  and  that 
for  the  base  metals  limited  mainly  to  what  was  required  for 
weapons.  That  was  the  real  golden  age  of  the  miner;  and  the 
frequently  frantic  call  on  his  fraternity  for  more  gold  and  silver 
by  the  Lords  of  the  Middle  ages,  and  for  more  iron  by  the 
fighting  class  of  the  same  period  indicate  the  extent  to  which, 
even  in  those  primitive  days,  the  world  was  dependent  on  him 
for  the  tools  and  appliances  of  progress. 

To-day  mining  is  one  of  the  great  activities  of  civilization 
ranking  next  to  agriculture  among  those  having  to  do  with  the  out- 
put of  raw  material.  If  we  consider  only  the  production  of  metals 
it  might  perhaps  be  advanced  to  the  first  place  as  a  source  of 
new  wealth.  For  while  the  foodstuffs  raised  by  the  farmer  this 
year  are  practically  all  eaten  up  by  the  time  the  next  harvest 
has  matured,  all  the  coal,  oil,  and  tobacco  burned  up,  and  all 
the  cotton,  wool,  and  silk  well  on  the  way  to  being  worn  out, 
it  is  not  so  with  the  metals.  Zinc  and  lead  in  the  form  of  paint 
(their  largest  use)  have  a  life  of  at  least  five  years,  while  in  other 
forms  their  term  of  endurance  must  certainly  be  rated  at  double 
that  figure.  Iron,  when  converted  into  tools,  machinery,  struc- 
tural shapes,  etc.,  not  only  has  a  still  longer  life,  but  becomes 
capable  of  earning  money  in  the  form  of  interest  and  rental  for 
its  possessor.  Copper  and  tin  persist  through  a  yet  lengthier 
term  of  active  existence  before  they  disappear.  Gold  and  silver 
as  coin  endure  until  they  are  lost.  Probably  some  of  the  yellow 
metal  that  was  employed  in  gilding  Solomon's  Temple  at  Jeru- 
salem, and  more  or  less  of  that  won  from  the  sands  of  the  river 
Pactolus  by  the  slaves  of  Croesus,  is  in  circulation  to-day.  A 


CONCLUSION  325 

million  dollars'  worth  of  the  ordinary  metals  may  be  regarded — 
from  the  point  of  view  of  accumulating  wealth — as  the  equivalent 
of  from  $5,000,000  to  $25,000,000  worth  of  grain  or  meat,  while 
that  amount  of  the  precious  metals  would  then  certainly  be 
as  valuable  as  $100,000,000  worth  of  foodstuffs. 

Taking  the  figures  of  the  year  1913  as  a  basis,  to  avoid  the 
unnaturally  high  prices  produced  by  the  war,  the  value  of  the 
world's  annual  crop  of  the  common  metals  may  be  stated  in 
round  figures  about  as  follows : 

Gold $460,000,000 

Copper 337,000,000 

Silver 171,000,000 

Zinc 150,000,000 

Tin 123,000,000 

Lead 109,000,000 

Platinum 13,000,000 

Nickel . .  12,000,000 

Mercury  ...'...., 6,000,000 


Total $1,381,000,000 

This  annual  crop  comes  into  the  market  from  its  various 
sources  of  production  in  about  the  following  amounts: 

From  the  United  States $424,000,000 

Europe . 240,000,000 

South  Africa 203,000,000 

Latin  America 162,000,000 

Australasia 119,000,000 

Canada 59,000,000 

Rest  of  the  world 174,000,000 


Total $1,381,000,000 

From  this  analysis  of  the  subject  it  is  not  difficult  to  under- 
stand the  value  of  the  metal  producing  industry  to  the  nations, 
and  the  importance  of  metal1  mining  law  as  a  department  of 
jurisprudence;  and  if  we  consider  the  latter  as  primarily  intended 
mainly  to  encourage  the  discovery  of  the  metallic  resources, 
and  secondarily  to  govern  the  operations  of  mining,  the  subject 


326  INTERNATIONAL  MINING  LAW 

will  acquire  a  new  interest  and  value.  That  this  should  be  its 
aspect  seems  to  be  beyond  question. 

For,  if  the  demand  for  the  metals  seems  great  at  this  time,  what 
will  it  be  fifty  years  hence?  They  have  already  become  vital 
necessities.  Note  the  absolute  dependence  of  the  machinery 
business  and  the  railroads  on  iron,  of  the  electrical  industries  on 
copper,  of  food  preservation  on  tin,  and  the  infinitude  of  pur- 
poses for  which  paint  is  a  necessity  on  lead  and  zinc.  How 
would  the  manufacturing  industries  fare  to-day  without  the 
ferro  alloys  of  manganese,  chromium,  nickel,  vanadium,  tungsten 
and  molybdenum,  and  the  chemical  industries  without  the 
numerous  metallic  and  non-metallic  substances  that  are  annually 
being  raised  in  ever  increasing  quantities  from  the  crust  of  the 
earth?  If  progress  in  this  line  of  activity  has  been  wonderful 
since  1850,  what  may  be  expected  during  the  next  70  years, 
after  wars  perhaps  have  come  to  an  end  forever? 

The  legislation  that  will  control  the  mining  of  the  future  is 
therefore  a  subject  worthy  of  the  most  careful  attention  and 
study.  Other  things  being  equal,  that  land  will  be  a  favored  one 
that  possesses  a  healthy,  vigorous,  and  permanent  mining 
industry.  Permanence  depends  wholly  upon  the  continuance  of 
the  agencies  of  discovery,  which  are  active  or  dormant  according 
to  the  freedom  of  search  for  hidden  underground  wealth  allowed 
to  the  pioneer  explorer.  As  the  world  depends  mainly  for  its  food 
on  the  labors  of  the  individual  farmer,  so  it  depends  for  its  metals 
on  the  efforts  of  the  prospector.  The  latter,  therefore,  should  be 
given  every  kind  and  variety  of  freedom  in  the  exercise  of  his 
form  of  activity  that  is  consistent  with  the  maintenance  of 
good  order,  and  be  relieved  of  all  burdens  that  can  be  shown 
to  be  hindrances  to  his  work.  I  know  of  no  better  way  of 
emphasizing  the  importance  of  this  point  than  to  quote  the 
following  paragraphs  from  the  article  on  Mining  in  the  llth 
edition  of  the  Encyclopaedia  Britannica,  Vol.  18,  page  541: 

"It  is  to  the  public  interest  that  deposits  of  mineral  should  not  be 
permitted  to  remain  idle  and  undeveloped.  This  has  been  recognized 


CONCLUSION  327 

from  the  earliest  times,  and  laws  have  been  framed  in  all  countries  for 
the  encouragement  of  mining  enterprise. 

"In  many  cases  the  State  or  the  Ruler  has  sought  to  obtain  a  share 
in  the  profits  of  mining,  or  even  to  work  mines  for  the  individual  profit 
of  the  Ruler  or  of  the  State.  But  in  most  cases  it  has  been  found  better 
policy  for  the  State  to  divest  itself  of  all  interest  in  mining  property,  and 
to  extend  all  possible  encouragement  to  those  who  undertake  the 
development  of  the  mineral  wealth  of  the  nation.  The  mining  laws  of 
most  civilized  states  grant  the  right  of  free  prospecting  on  the  public 
lands,  protect  the  rights  of  the  discoverer  of  the  mineral  deposit  during 
the  period  of  exploration,  and  provide  for  the  acquisition  of  mineral 
property  on  favorable  terms.  Striking  examples  of  the  far  reaching 
effects  of  such  laws  is  shown  in  the  history  of  the  Rocky  Mountain  region 
and  western  coast  of  the  United  States,  the  colonization  and  develop- 
ment of  Australia,  and  the  development  of  Alaska." 


22 


INDEX 


Acquiring  title,  see  Title,  acquiring. 
Agricola,  17,  291 
A  guillon,  Louis,  253 
Alaska,  prospecting,  288 
America,  history  of  mining  in,  9-15 
American  system  of  mining  laws,  98- 
114 

acquiring  title,  98 

extralateral  rights,  99 

history,  99 

mining  titles,  100 

placer  and  lode  claims,  99 

prospecting,  102 

See  also  United  States. 
Ancient  mining  laws  in  Germany, 
17-20 

in  Spain,  21-43 
Antimony,  royalties  on,  29,  34 
Apex  rights,  aid  to  prospectors,  289 

modification,  316 

See  also  Extralateral  rights. 
Arabs  in  Spain,  23 
Argentina,  acquiring  title,  55 

condition   of  mining  industry, 
96,  97 

dredging  rights,  57 

extralateral  rights,  56 

hydraulic  operations,  57 

mining  laws,  52-58 

number  of  claims,  56 

prospecting,  53 
laws,  50 

size  of  claim,  54 

transference  of  claims,  57 
Arizona,  mining  conditions,  301 
Ashanti,  mining  laws,  270 


Assyrians,  use  of  iron  by,  6 
Australasian  system  of  mining  law, 
see     British     Australasian 
system. 

Australia,  gold  discovery  in,  2,  12 
history  of  mining,  319 
mining  law  in,  13 
See  also  South  Australia,  West- 
ern Australia. 

Austria,  mercury  mines  in,  8 
Austria-Hungary,  mining  laws,  214 

Belgium,  metallurgy  of  zinc  in,  7 
Bessemer  converter,  7 
Bohemia,  mining  laws,  5 
Bolivia,  duties  on  metals,  61 

mining  laws,   58-61 

prospecting  in,  50,  59 

royalties,  61 

size  of  claim,  59 

tax  on  mines,  60 

tin  production,  95 

tunnel  rights,  60 

Brazil,   condition  of  mining  indus- 
try, 96,  97 

mining  law,  61-64 

prospecting  in,  62 

royalties,  64 

size  of  claim,  63 

transference  of  claims,  64 
British  Australasia,  discoveries  of  ore, 
288 

history  of  mining,  319 

leasehold,  304 

mineral  production,      153-155, 
325 


329 


330 


INDEX 


British   Australasian   system,    115- 
155 

New  South  Wales,  118 

New  Zealand,  123 

production  statistics,    153-155, 
325 

prospecting,  117 

Queensland,  129 

rental  for  claims,  118 

South  Australia,  135 

Tasmania,  139 

transference  of  claims,  117 

Victoria,  144 

Western  Australia,  148 
British  Columbia,  crown  grants,  163 

discoveries  of  ore,  288 

free  miner's  certificate,  162 

leases,  163 

maintenance  requirements,  163 

mining  laws,  162 

prospecting,  162,  243 

size  of  claim  area,  161,  163,  244 
British  Guiana,  mining  in,  97 

laws,  243 

British   India  and   Burma,   mining 
laws,  245 

Mysore,  mining  law,  276 
British  North  Borneo,  mining  laws, 

285 
British  South  Africa  Company,  199, 

200,  203,  204 
Bronze,  discovery  of,  3 
Burma,  mining  laws,  245 

California,  gold  discovery  in,  2,  12 

early  mining  laws,  99 

mining  law  in,  12 
Canada,  discoveries  of  ore,  288 

history  of  mining,  318 

mineral  production,   325 

mining  law  in,  15 
Canadian  system  of  mining  law,  156 

British  Columbia,  162 


Canadian    system   of   mining   law, 
Dominion  of  Canada,  164 

leasehold,  304,  306 

New  Brunswick,  165 

Newfoundland,  168 

Ontario,  172 

production  statistics,  176-178 

prospecting,  157 

Quebec,  174 

staking  claims,  316 
Cape  Colony,  base  metals  and  min- 
erals, laws,  188 

leases,  189 

mining  laws,  184 

precious  metals,  laws,  184 
stones,  laws,  187 

prospecting,  184,  187,  188 

size  of  claims,  185,  186 
Cape  Province,  leasehold  tax,  305 
Cassiterite,  mining  history,  3 
Cayenne,  mining  laws,  265 
Central  America,  condition  of  min- 
ing industry,  96 
Ceylon,  mining  laws,  247 
Charcoal  as  a  fuel,  6 

iron,  6 

Chihuahua,   Mexico,  mining  condi- 
tions, 301 
Chile,  copper  production,  95 

mining  in,  11 
laws,  64 

prospecting  in,  50,  64 

size  of  claim,  65 

tax  on  claims,  66 
China,  naming  laws,  249 
Cinnabar,  8 
Claims,  joint  location,  106 

lode,  104 

mill  site,  106 

placer,  106 

recording,  in  U.  S.,  105 

registration,     in     New     South 
Wales,  120 


INDEX 


331 


Claims,  taxes  in  U.  S.,  108 

tunnel  site,  107 

See  also  Classification  of  mineral 
claims;  size  of  claims;  title, 
acquiring. 

Classification  of  mineral  claims,    in 
France,  215 

French  Guiana,  265 

Guatemala,  73 

Haiti,  271 

Natal,  189 

New  Zealand,  126 

Nigeria,  279 

Peru,  83 

South  Australia,  135 

Spain,  231 

Texas,  109 

Turkey,  237 

United  States,  104 

Uruguay,  86 

Venezuela,  89 

Victoria,  144 

Western  Australia,  148 
Clausthal,  lead  veins  at,  4 
Coal  mining,  history,  2 

in  Texas,  110 
Codes  in  Spain,  23,  24 
Coke,  use  in  iron  casting,  6 
Colombia,  acquiring  title,  67 

condition  of  mining  industry,  96 

mining  laws  in,  66-68 

prospecting,  66 

size  of  claims,  66 

Company  operations,  in  Colombia, 
66 

Guatemala,  77 

Honduras  and  Nicaragua,  81 

Latin  America,  51 

Venezuela,  91 

Western   Australia,    149 
Congo  Free  State,  mining  laws,  251- 

254 
Conveyancing  rights,  in  Spain,  32 


Copper,  in  Chile,  11 

mining,  4 

history,  5 

Copper  production  in  British  Aus- 
tralasia, 153-155 

Canada,  176-178 

Europe,  242 

Latin  America,  94 

South  Africa,  211 

United  States,  111-113,  318 

of  the  World,  325 
Copper,  royalties  on,  29,  33 
Cornwall,  tin  mining  in,  7 
Costa  Rica,  acquiring  title,  69 

mining  laws,  68 

prospecting,  68 

royalties,  69 

size  of  claims,  68 
Crown  grants,  in  British  Columbia, 

163 
Cuba,  acquiring  title,  71 

mining  laws,  69 

prospecting,  71 

size  of  claims,  71 

tax  on  mines,  72 
Cyprus,  mining  laws,  257 

Defects  of  American  law,  313 
Denouncement,  definition,  36 
Discovery  of  ore  a  prerequisite  to 
location,  300-303 

relation  to  prospecting,  288 
Dominion  of  Canada,  mining  laws, 
164 

prospecting,  164 

size  of  claims,  165 
Dredging  rights,  in  Argentina,  57 
Dutch  Guiana,  mining  in,  97 

law,  257 
Duties  on  metals,  see  Royalties. 

Ecuador,  condition  of  mining  indus- 
try, 96,  97 


332 


INDEX 


Ecuador,  mining  laws,  72 
Egypt,  leases,  262 

licenses,  261 

mining  law,  260 

use  of  iron  in,  6 
Electrolysis,  7 
Electroplating,  7 
England,  extralateral  doctrine,  293 

iron  and  steel  industry  in,  7 

patent   for   coating   iron    with 
zinc,  7 

See  also  Great  Britain. 
Europe,    mineral    production,    241, 

242,  325 

European  systems  of  mining  law, 
212-242 

Austria-Hungary,  214 

France,  215 

Germany,  219 

Great  Britain,  221 

Italy,  222 

Norway,  225 

Portugal,  226 

prospecting,  213 

results,  241 

Russia,  230 

Serbia,  240 

Sicily,  225 

Spain,  231 

Sweden,  236 

Turkey,  236 

underground  ownership,  212 
Exploration,  beginning  of,  10 
Extralateral  rights,  19,  291-299 

aid  to  prospectors,  289 

in  Argentina,  56 

England,  293 
•     Germany,  291,  292 

Latin  America,  51 

merits,  297 

modification  in  United  States, 
316 

origin,  291 


Extralateral  rights,   Rhodesia,  182, 

298 

size  of  claim  unit,  291 
Spain,  293 
United  States,  99 

Faraday,  7 

Federal  mining  law  in  United  States, 

103,  287 
Federated    Malay    States,    mining 

law,  263 
Fee  simple  title  vs.  leaseholds,  304- 

306 

Finland,  mining  laws,  230 
France,     classes    of    mineral    sub- 
stances, 215 
metallurgy  of  zinc  in,  7 
mining  laws,  215 
prospecting,  216 
royalties,  218 
surface  and  underground  rights, 

217 

use  of  iron  in,  6 
Free  miner's  certificate,  in  British 

Columbia,  162 
prospecting    vs.    licensed,   307- 

310 

Freiburg,  silver  mines,  4 
French  Guiana,  mining  in,  97 

laws,  265 
staking  claims,  316 

Galvani,  7 
Gamboa,  31,  32 
Gas,  in  Texas,  109 
German  mining  law,  acquiring  title 
by,  18 

ancient,  17-20,  32 

extralateral  rights,  19,  291,  292 

meer,  unit  claim,  17 

prospecting,  219,  220 

Prussian  law,  219 

Saxon  law,  220 


INDEX 


333 


German  mining  law,  tunnel  rights,  20 
Germans,  in  Spain,  34 
Germany,  iron  castings  made  in,  6 
metallurgy  of  zinc  in,  7 
mining  in,  5 
Gold,  discoveries,  318 

discovery  in  New  South  Wales, 

115 
mining,  history,  2 

in  the  Urals,  5 
production  in  British  Australia, 

153-155 

Canada,  176-178 
Europe,  242 
Latin  America,  94 
South  Africa,  211 
United  States,  111-113,  318 
of  the  world,  325 
reward  for  discovery,  131 
royalties  on,  29,  33,  34,  37,  43 
Gold  Coast,  mining  laws,  270 
Great  Britain,  mining  laws,  221 
Greece,  early  mining  in,  2 
lead  mining  in,  8 
use  of  iron  in,  6 
Guatemala,  acquiring  title,  75 
mining  laws,  73 
prospecting,  75 
royalties  and  tax,  77 
size  of  claim,  75 
Haiti,  mining  laws,  271 
Hematite,  iron  reduced  from,  6 
History  of  mining  and  mining  law, 

1-16 

•Holland,  electroplating  in,  7 
Honduras,  acquiring  title,  79 
mining  laws,  78 
prospecting,  78 
size  of  claims,  79,  81 
tax,  80 

Hoover,  H.  A.,  17,  292 
Hydraulic  operations,  in  Argentina, 
57 


Iberian  peninsula,  mining  in,  3 
Idria,  quicksilver  mines,  4 
Iglau,  silver  veins  at,  5 
India,  mining  laws,  245 

tin  mining  in,  3 

Inquisition,  effect  on  mining  indus- 
try, 11 
Iron,  Bessemer  converter  invented,  7 

charcoal  iron,  6 

discovery  as  a  metal,  5 

history  of  use,  6 
Italy,  mining  laws,  222 

Japan,  mining  laws,  273 
Joachimsthal  mint,  5 
Joint  location,  106 

Katanga  Mines  Co.,  254 
Kuttenberg  silver  mines,  4 

Land  tenure  law,  Roman,  47 
Latin  America,  continuation  of  an- 
cient Spanish  laws,  32 

discoveries  of  ore,  288 

mining  in,  11 

old  Spanish  mining  laws,  39 

production  statistics,  94,  325 
Latin-American   system   of   mining 
law,  11,  47 

Argentina,  52 

Bolivia,  58 

Brazil,  61 

Chile,  64 

Columbia  and  Panama,  66 

company  operations,  51 

Costa  Rica,  68 

Cuba,  69 

Ecuador,  72 

extralateral  rights,  51 

form  of  title,  50 

Guatemala,  73 

Honduras  and  Nicaragua,  78 

land  tenure  law,  48 


334 


INDEX 


Latin-American   system   of   mining 

law,  leasehold,  304 
Mexico,  81 
Peru,  83 
prospecting,  49 
results,  94 
Uruguay,  86 
Venezuela,  89 
Lead,  mining,  4,  7 

history,  7 

production  in  British  Australa- 
sia, 153-155 
Canada,  176-178 
Europe,  242 
Latin  America,  94 
United  States,  111-113 
of  the  world,  325 
royalties  on,  29,  33 
Leasehold  vs.  fee  simple  title,  304- 

306 

Leases,  in  British  Columbia,  163 
Cape  Colony,  189 
Egypt,  262 

Federated  Malay  States,  265 
Germany,  17 
Mysore,  278 
New  Brunswick,  167 
New  South  Wales,  121 
Newfoundland,  169 
Nigeria,  281 
Nova  Scotia,  171 " 
Queensland,  133 
Siam,  284 

South  Australia,  138 
Tasmania,  142 
Victoria,  147 
Western  Australia,  151 
Licensed  prospecting  vs.  free,  307— 

310 

Licenses,  in  Congo  Free  State,  254 
Egypt,  261 

Federated  Malay  States,  264 
Mysore,  276 


Licenses,  Natal,  190,  192 

New  Brunswick,  166 

Nigeria,  280 

Nova  Scotia,  170 

Ontario,  172 

Quebec,  175 

Siam,  283 

South  Africa,  181 

Transvaal,  209 

See  also  Miner's  right. 
Liebig,  8 

Lignite  mining  in  Texas,  110 
Location    of    claim    dependent    on 

discovery  of  ore,  300 
Lode  claims,  104 

in  California,  99 

Malayan  peninsula,  tin  deposits   in, 

4 

Manlove,  Edward,  293 
Meer,  in  German  laws,  17 
Mercury,  mining  and  use  of,  8 
production  in  Europe,  242 
United  States,  111,  113 
of  the  world,  325 
Metals,  statistics  of  production,  see 

Statistics. 

Meteorites,  iron  reduced  from,  5 
Mexico,  acquiring  title,  82,  83 
company  operations,  51 
gold  production,  96 
mining  conditions,  301 
mining  in,  11 

laws,  44^46,  81 
number  of  claims,  46 
production      of      argentiferous 

ores,  95 

prospecting,  33,  45,  50,  82 
results  of  mining  laws,  96,  97 
size  of  claim,  46,  82 
statistics     of     production     of 

metals,  94,  97 
success  of  laws,  301 


INDEX 


335 


Mexico,  taxes,  83 

Mill  site,  in  United  States,  106 

Mineral  production  of  the  world,  325 

See  also  Statistics  of  production. 

prospecting  warrant,  125 
Miner's  right,  in  New  South  Wales, 
118 

New  Zealand,  123 

South  Australia,  135 

Tasmania,  117,  139,  140 

Victoria,  144 

Western  Australia,  148 

See  also  Licenses,  mineral  pros- 
pecting warrant. 

Mining,  history  of,  1-16,  318-322 
Mining  laws,  American  system,  98— 
114 

ancient  German,  17-20 
Spanish,  21-43 

Argentina,  52-58 

Ashanti,  270 

Australia,  13 

Austria-Hungary,  214 

Bohemian  code,  5 

Bolivia,  58-61 

Brazil,  61 

British     Australasian     system, 
115-155 

British  Columbia,  162 

British  Guiana,  243 

British  India  and  Burma,  245 

British  North  Borneo,  285 

California,  13 

Canada,  15,  164 

Canadian  system,  156 

Cape  Colony,  184 

Ceylon,  247 

Chile,  64 

China,  249 

Colombia,  66-68 

conclusions,  323-327 

Congo  Free  State,  251 

Costa  Rica,  68 


Mining  laws,  Cuba,  69 
Cyprus,  257 
discovery  of  ore  and  locating 

claim,  300 
Dutch  Guiana,  257 
earliest  code,  in  Bohemia,  5 
Ecuador,  72 
Egypt,  260 

European  systems,  212-242 
extralateral  rights,  19,  291-299 
Federated  Malay  States,  263 
France,  215 
French  Guiana,  265 
Germany,  219 
Gold  Coast,  270 
Great  Britain,  221 
Guatemala,  73 
Haiti,  271 
history  of,  1-16 
Honduras,  78 
Italy,  222 
Japan,  273 
Latin  America,  11 
Mexico,  81 

Mysore,  British  India,  276 
Natal,  189 
New  Brunswick,  165 
New  South  Wales,  115,  118 
New  Zealand,  123 
Newfoundland,  168 
Nicaragua,  78 
Nigeria,  279 
Norway,  225 
Nova  Scotia,  170 
Ontario,  172 
Orangia,  193 
Panama,  66-68 
Peru,  83 
Portugal,  226 
prospecting,  307-310 
Quebec,  174 
Queensland,  129 
Russia,  5,  230 


336  INDEX 

Mining  laws,  Serbia,  240  New  South  Wales  mining  laws,  115, 

Siam,  283  118-123 

Sicily,  225  prospecting,  120 

South  African  system,  15,  179-  royalties,  123 

211  surveys  of  claims,  120 

South  Australia,  135  See    also    British    Australasian 

Southern  Rhodesia,  199  system. 

Spain,  231  New      Zealand,      classification      of 

Sweden,  236  claims,  126 

Tasmania,  139  history  of  mining,  320 

Transvaal,  206  miner's  right,  123 

Turkey,  236  mining 'laws,  123 

Uruguay,  86  royalties,  128 

Venezuela,  89  Newfoundland,  mining  laws,  168 

Victoria,  144  Nicaragua,  acquiring  title,  79 

Western  Australia,  148  mining  laws  in,  78 

Mining  license,  see  Licenses,  miner's  prospecting,  78 

right.  size  of  claims,  81 

properties,  see  Classification  of  tax,  80 

mineral  claims.  Nickel  ore,  discovery,  318 

Mirrors,  coating  with  mercury,  8  production  in  Canada,  176-178 

Moors  in  Spain,  22  of  the  world,  325 

Mysore     (British     India),     mining  Nigeria,  mining  laws,  279 

laws,  276  Norway,  mining  laws,  225 

silver  mines,  5 

Natal,  classes  of  claims,  189  Nova  Scotia,  leaseholds,  171 

leasehold  tax,  305  licenses,  170 

licenses,  190,  192  mining  laws,  170 

mining  claims,  192  prospecting,  158,  170 

laws,  189  royalties,  172 

prospecting,  190  Number  of  claims  allowed,  see  Size 

surveying  fees,  192  of  claims. 
New  Brunswick,  leaseholds,  167 

licenses,  166  Oil,  in  Texas,  109 

mining  laws,  165  Ontario,  licenses,  172 

prospecting,  159,  165  mining  laws,  172 

royalties,  168  patents,  174 

size  of  claims,  166  prospecting,  174 

New  Mexico,  mining  conditions,  301  size  of  claims,  172 

New  South  Wales,  classes  and  sizes  Orangia,  base  metals  and  minerals, 

of  claims,  119  198 

leases,  121  leasehold,  305 

miner's  right,  118  mining  laws,  193 


INDEX 


337 


Orangia,  precious   metals  and  pre- 
cious stones,  194 
prospecting,  194 

Panama,  mining  law  in,  66—68 
Paraguay,      condition     of     mining 

industry,  96 
Patents  of  claims,  in  Ontario,  174 

United  States,  107 
Patented  claims,  costs,  315 
Peru,  acquiring  title,  85 

classification  of  minerals,  83 

mining  laws,  83 

prospecting  in,  50,  84 

royalties,  86 

size  of  claim,  84 

taxes,  84 

Petroleum,  in  Texas,  109 
Petti  jean,  8 
Phoenicians,  in  Spain,  22 

mining  by,  3 
Placer  claims,  103 

areas  in  Spain,  39 

California,  99 

United  States,  314 
Platinum    production    in    Europe, 
242 

of  the  world,  325 
Poland,  mining  laws,  230 
Portugal,     control     of     mining     in 
America  by,  11 

land  tenure  law,  48 

mining  laws,  226 

prospecting,  227 

taxes,  229 
Possessory  rights  in  Latin  America, 

50 
Spain,  32 

title,  107 
Precious  stone  mining,  laws,  184 

in  Orangia,  194 
Private  land,  mining  on,  134 

in  Tasmania,  143 


Production     statistics,     in     British 
Australasia,  153-155 

Canada,  176-178 

Europe,  241,  242 

Latin  America,  94,  325 

South  Africa,  210,  211 

Western  United  States,  111-113 

of  the  world,  325 

Prospecting    areas,    311,    312.     See 
also  Size  of  claims. 

beginning  of,  10 

free  vs.  licensed,  307-310 
Prospecting,  in  America,  102,  104 

Argentina,  50,  53 

Austria-Hungary,  214 

Bolivia,  50,  59 

Brazil,  62 

British  Australasia,  117 

British  Columbia,  162 

British  Guiana,  243 

British  India  and  Burma,  245 

Canada,  157,  164 

Cape  Colony,  184,  187,  188 

Ceylon,  248 

Chile,  50,  64 

China,  250 

Colombia  and  Panama,  66 

Congo  Free  State,  253,  254 

Costa  Rica,  68 

Cuba,  71 

Dominion  of  Canada,  157,  164 

Dutch  Guiana,  257 

Egypt,  260 

Europe,  213 

Federated  Malay  States,  264 

France,  216 

French  Guiana,  265 

Germany,  219,  220 

Gold  Coast,  270 

Guatemala,  75 

Haiti,  272 

Honduras  and  Nicaragua,  78 

Italy,  222-224 


338 


INDEX 


Prospecting,  Japan,  273 

Latin  America,  49 

Mexico,  33,  45,  50,  82 

Mysore,  277 

Natal,  190 

New  Brunswick,  159,  165 

New  South  Wales,  116,  120 

Newfoundland,  168 

Nigeria,  279 

Norway,  225 

Nova  Scotia,  158,  170 

Ontario,  174 

Orangia,  194 

Peru,  50,  84 

Portugal,  227 

Quebec,  159,  175 

Russia,  230 

Serbia,  240 

Siam,  283 

South  Africa,  181,  182 

Southern  Rhodesia,  200,  205 

Spain,  34,  232 

Sweden,  236 

Transvaal,  207 

Turkey,  237 

United  States,  102,  104,  108 

Uruguay,  86 

Venezuela,  93 

Prospecting,  license,  see  Licenses, 
mineral  prospecting  war- 
rant, miner's  right. 

Spanish  law,  38 
Prospectors,  286 

absence  outside  of  United  States, 
287 

apex  and  extralateral  rights,  289 

necessary  inducements,  288 
Prussian  law,  219 
Przibram,  silver  mines  at,  4 

Quebec,  licenses,  175 
mining  law,  174 
prospecting,  159,  175 


Quebec,  royalties,  175 
Queensland,  leases,  133 
miner's  right,  129 
mining  law,  129 

on  private  land,  134 
reward  for  gold  discovery,  131 
royalties,  134 
size  of  prospecting  areas,  131 

claims,  132,  133 
Quicksilver,     claimed    by     Spanish 

government,  40,  42 
mines,  4 
See  also  Mercury. 

Reduction  of  ores,  in  Spain,  30,  37 
Registration   of    claims,    see    Title, 

acquiring. 

Rental  on  claims,  see  Taxes. 
Reward  for  gold  discovery,  131 
Rhodesia,    extralateral  rights,    182, 
298 

gold  production,  183 

mining  law  in,  15 

southern,  mining  laws,  199 
Roman  land  tenure  law,  47 
Romans,  in  Spain,  22 

mercury  mining  by,  8 

mining  in  Sudetic  Alps,  4 

use  of  lead  by,  7 
Royalties,  in  Bolivia,  61 

Brazil,  64 

British  India  and  Burma,  246 

Ceylon,  249 

China,  250 

Congo  Free  State,  253 

Costa  Rica,  69 

Cyprus,  257 

Egypt,  262,  263 

France,  218 

Gold  Coast,  271 

Guatemala,  77 

Mysore,  276,  277,  278 

New  Brunswick,  168 


INDEX 


339 


Royalties,    New  South  Wales,  123 

New  Zealand,  128 

Nigeria,  281,  282 

Nova  Scotia,  172 

Peru,  86 

Quebec,  175 

Queensland,  134 

Siam,  284 

Southern  Rhodesia,  206 

Spain,  28,  30,  33,  34,  37,  236 

Spanish  America,  43 

Texas,  110,  111 

Transvaal,  210 

Turkey,  238 

Western  Australia,  152 
Russia,  mining  laws,  5,  230 

Salt  mines  at  Wielitzka,  4 
Saltpeter  mines  in  Chile,  11 
Saxon  law,  in  Germany,  220 
Serbia,  mining  laws,  240 
Siam,  mining  laws,  283 
Sicily,  mining  laws,  225 
Silver-lead  veins,  4 

lead-zinc  ore,  mining,  3 

mining,  discovery  of  mines,  4,  5 
Norwegian  mines,  5 
in  Sudetic  Alps,  4 
Silver  production  in  British  Australa- 
sia, 153-155 

Canada,  176-178 

Europe,  242 

Latin  America,  94 

South  Africa,  211 

United  States,  111-113,  318 

of  the  world,  325 
Silver,  royalties,  29,  30,  33,  34 

in  Spain,  37 

in  Spanish  America,  43 
Size  of  claim,  in  Argentina,  54 

Bolivia,  59 

Brazil,  63 

British  Columbia,  244 


Size  of  claim,  Cape  Colony,  185,  186 

Chile,  65 

Colombia  and  Panama,  66 

Cuba,  71 

Dominion  of  Canada,  165 

Honduras  and  Nicaragua,  79,  81 

Mexicp,  46,  82 

New  Brunswick,  166 

New  South  Wales,  119 

Norway,  226 

Nova  Scotia,  171 

Ontario,  172 

Peru,  84 

Porto  Rico,  68 

Queensland,  132,  133 

South  Australia,  136 

Southern  Rhodesia,  202,  203 

Spain,  28,  31,  35,  38,  232 

Spanish  America,  42 

Tasmania,  141 

Texas,  110 

Transvaal,  207,  209 

Uruguay,  87 

Venezuela,  91 

Western  Australia,  149 
Sonora,  Mexico,  mining  conditions, 

301 

South   Africa,   mineral  production, 
325 

mining  law  in,  15 

South    African    system    of   mining 
law,  179-211 

Cape  Colony,  184 

labor  conditions,  179 

leasehold,  304 

licenses,  181 

mining  conditions,  183 

Natal,  189 

Orangia,  193 

production  statistics,  210,  211 

prospecting,  181,  182 
Southern  Rhodesia,  199 
Transvaal,  206 


340 


INDEX 


South  Australia,  classification  of 
claims,  135 

leases,  138 

miner's  right,  135 

mining  laws,  135 

size  of  claims,  136 

Southern  Rhodesia,  British  South 
Africa  Company,  199,  200, 
203,  204 

mining  laws,  199 

prospecting,  200,  205 

residence  sites,  etc.,  205 

royalties,  206 

size  of  claims,  202,  203 

taxes,  204 
Sovereign  rights,  1 
Spain,  ancient  mining  laws,  21-43 

control  of  mining  in  America 
by,  11 

history  of  mining,  21-43 

mercury  mining  in,  8 
Spanish  America,  digest  of  Spanish 
law,  41 

old  mining  laws,  39 

royalties,  43 

size  of  claim,  42 
Spanish  mining  laws,  21-43,  231 

abstract  of  law  of  1849,  37 

abstracts,  25 

books  on  mining  laws,  25 

classes  of  mineral   substances, 
231 

code  of  Alaric,  23 
Castile,  23 

codes,  23,  24 

continuation  in  Spanish  Amer- 
ica, 32 

decrees  in  Spanish  America,  39 

denouncement,  definition,  37 

digest  of  law  of  1559,  28 

extralateral  rights,  293 

Kings'  decrees,  25 

land  tenure  law,  48 


Spanish   mining   laws,    number    of 

claims  allowed,  35,  38 
possessory    and    conveyancing 

rights,  32 

prospecting,  38,  232 
reduction  of  ore,  37 
registry  of  claims,  34 
royalties,  28,  30,  33,  34,  37,  236 
Siete  Partidas,  24 
size  of  claims,  28-31,     35,     38, 

232 

tunnel  rights,  31 

Staking  claims,  in  United  States,  316 
Statistics  of  production  in   British 

Australasia,    153-155 
Canada,  176-178 
Europe,  241,  242 
Latin  America,  94,  325 
South  Africa,  210,  211 
Western  United  States,  111-113 
of  the  world,  325 
Sudetic  Alps,  mining  in,  4,  17 
Surface  and  underground  rights,  in 

Bolivia,  58 
British  Isles,  314 
Cuba,  70 
Europe,  212 
France,  217 
Peru,  84 

United  States,  108,  314 
Uruguay,  88 
Venezuela,  90 
Surinam,  mining  law,  257 
Surveying,  in  Natal,  192 
New  South  Wales,  120 
Western  Australia,  150 
Sweden,  mining  laws,  236 

Tasmania,  history  of  mining,  321 
leases,  142 
miner's  right,  140 
mining  laws,  139 
on  private  land,  143 


INDEX  341 

Tasmania,  prospecting  license,  139      Title,    fee    simple,     vs.     leaseholds, 

size  of  claim,  141  304r-306 

Taxes  in  Bolivia,  60  form  of,  in  Latin  America,  50 

Chile,  66  Transference  of  claims,   in   Argen- 

Cuba,  72  tina,  57 

Guatemala,  77  Brazil,  64 

Honduras  and  Nicaragua,  80  British  Australasia,  117 

Mexico,  83  Transvaal,  certificate  of  rights,  208 

Peru,  84  discovery  of  gold,  298 

Portugal,  229  gold  production,  183 

Southern  Rhodesia,  204  leasehold,  305 

United  States,  108  licenses,  209 

Uruguay,  89  mining  law  in,  15,  206 

Venezeula,  92  prospecting,  207 

Tenements,  119  royalties,  210 

Texas,  classification  of  minerals,  109              size  of  claim,  207,  209 

coal  and  lignite  mining,  110  Tunnel  rights,  20 

discoveries  of  ore,  288  in  Bolivia,  60 

mining  laws,  109  in  Spain,  31 

results  of  laws,  111  in  United  States,  316 

royalties,  110,  111  site,  in  United  States,  107 

size  of  claim,  110  Turkey,  law  in  Cyprus,  257 

Tin  mining,  7  mining  laws,  236 

history,  3  royalties,  238 

in  Cornwall,  7 

production  in  British  Australa-      Underground    rights,     see    Surface 

sia,  153-155  and  underground  rights. 

Europe,  242  Unit  mining  claim,  see  Size  of  claim. 

Latin  America,  94  United  States,  classes  of  claims,  104 

of  the  world,  325  cost  of  patents,  315 
Title  acquiring  by  German  law,  18               defects  of  mining  law,  313 
in  Argentina,  55  Federal  mining  law,  103,  287 
Bolivia,  59  history  of  mining,  318 
Colombia  and  Panama,  67  leasehold,  306 
Costa  Rica,  69  lode  claim,  104 
Cuba,  71  mill  site,  106 
Guatemala,  75  mineral  production,  325 
Honduras  and  Nicaragua,  79  mining    industry    commercial- 
Mexico,  82,  83  ized,  5 
Peru,  85  laws,  98-114 
United  States,  98,  100  see  also  American  system. 
Uruguay,  87  patent  on  claims,  107 
Venezuela,  93  placer  claim,  106,  314 


342 


INDEX 


United  States,  prospecting,  104,  108 

prospectors  in,  287 

staking  claims,  316 

state  laws,  108,  109,  315 

statistics  of  production,  111,  113 

surface  rights,  108 

taxes  on  claims,  108 

tunnel  rights,  316 
site,  107 

underground  rights,  314 
Uruguay,  acquiring  title,  87 

classification  of  minerals,  86 

condition  of  mining  industry,  96 

mining  laws,  86 

prospecting,  86 

size  of  claim,  87 

surface  and  underground  rights, 
88 

taxes,  89 

Venezuela,  acquiring  title,  93 
classification  of  minerals,  89 
condition  of  mining  industry,  96 
mining  laws,  89 
prospecting,  93 
size  of  claim,  91 
surface  and  underground  rights, 

90 
taxes,  92 


Victoria,  classification  of  claims,  144 

leases,  147 

miner's  right,  144 

mining  laws,  144 
Visigoths  in  Spain,  22 
Volta,  7 

Western  Australia,  classification  of 
claims,  148 

leases,  151 

miner's  right,  148 

mining  laws,  148 

royalties,  152 

size  of  claims,  149 

survey  of  claims,  150 
Wielitzka,  salt  mines  at,  4 

Xavier  de  Gamboa,  Don  F.,  24 

Yukon   Territory,  discoveries  lack- 
ing, 288 

Zinc,  metallurgy  of,  7 

production,  in  British  Australa- 
sia, 153-155 
Canada,  176-178 
Europe,  242 
Latin  America,  94 
United  States,  111-113 
of  the  world,  325 


YB  24231 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 


